<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 21, 1997
333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<C> <C>
UNION PLANTERS CORPORATION UNION PLANTERS CAPITAL TRUST A
(Exact name of Registrant as specified in charter) (Exact name of Registrant as specified in Declaration of
Trust)
TENNESSEE 6021 62-0859007 DELAWARE 6199 62-6317227
(State of (Primary Standard (I.R.S. Employer (State of (Primary Standard (I.R.S. Employer
Incorporation) Industrial Identification No.) Organization) Industrial Identification No.)
Classification Classification
Code No.) Code No.)
</TABLE>
UNION PLANTERS ADMINISTRATIVE CENTER
7130 GOODLETT FARMS PARKWAY,
MEMPHIS, TENNESSEE 38018
(901) 880-6596
(Address, including zip code, and telephone number, including area code, of
agent for service of each Registrant)
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E. JAMES HOUSE, JR.
SECRETARY & MANAGER, LEGAL DIVISION
UNION PLANTERS CORPORATION
7130 GOODLETT FARMS PARKWAY
MEMPHIS, TENNESSEE 38018
(901) 580-6596
(Name, Address including zip code, and telephone number, including area code, of
agent for service of each Registrant)
------------------
COPIES TO:
R. NASH NEYLAND, ESQ., WYATT, TARRANT & COMBS
6075 POPLAR AVENUE, SUITE 650, MEMPHIS, TENNESSEE 38119
(901) 537-1023
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, please check the following box. [ ].
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CALCULATION OF REGISTRATION FEE
<TABLE>
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=======================================================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
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<S> <C> <C> <C> <C>
Common Stock of Union Planters
Capital Trust A.................. $200,000,000 100% $200,000,000 $60,606.06
- -----------------------------------------------------------------------------------------------------------------------
Junior Subordinated Deferrable
Interest Debentures due 2026 of
Union Planters Corporation(2).... -- -- -- N/A
- -----------------------------------------------------------------------------------------------------------------------
Union Planters Corporation
Guarantee with respect to Capital
Securities(3).................... -- -- -- N/A
- -----------------------------------------------------------------------------------------------------------------------
Total(4)........................... $200,000,000(5) 100% $200,000,000(5) $60,606.06
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</TABLE>
(1) Estimated solely for the purpose of computing the registration fee.
(2) The Junior Subordinated Deferrable Interest Debentures due 2026 (the
"Subordinated Debt Securities") were originally purchased by Union Planters
Capital Trust A with the proceeds of the sale of the Old Capital Securities.
No separate consideration will be received for the Subordinated Debt
Securities distributed upon any liquidation of Union Planters Capital Trust
A.
(3) No separate consideration will be received for the Guarantee.
(4) This Registration Statement is deemed to cover the Subordinated Debt
Securities of Union Planters Corporation, the rights of holders of
Subordinated Debt Securities of Union Planters Corporation under the
Indenture, the rights of holders of Capital Securities of Union Planters
Capital A Trust under the Declaration, and the rights of holders of the
Capital Securities under the Guarantee.
(5) Such amount represents the liquidation amount of the Union Planters Capital
Trust A Capital Securities to be exchanged hereunder and the principal
amount of Subordinated Debt Securities that may be distributed to investors
upon any liquidation of Union Planters Capital Trust A.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
PROSPECTUS
UNION PLANTERS CAPITAL TRUST A
OFFER TO EXCHANGE ITS 8.20% CAPITAL SECURITIES WHICH HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 FOR ANY AND ALL OF ITS
OUTSTANDING 8.20% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
UNION PLANTERS CORPORATION
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1997, UNLESS EXTENDED.
Union Planters Capital Trust A, a trust formed under the laws of the State
of Delaware (the "Trust") and Union Planters Corporation, a Tennessee
corporation, as Sponsor ("UPC" or the "Company"), hereby offer, upon the terms
and subject to the conditions set forth in this Prospectus (as the same may be
amended or supplemented from time to time, the "Prospectus") and in the
accompanying Letter of Transmittal (which together constitute the "Exchange
Offer"), to exchange up to $200,000,000 aggregate Liquidation Amount of its
8.20% Capital Securities (the "New Capital Securities") which have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a Registration Statement (as defined herein) of which this
Prospectus constitutes a part, for a like Liquidation Amount of its outstanding
8.20% Capital Securities (the "Old Capital Securities"), of which $200,000,000
aggregate Liquidation Amount is outstanding. Pursuant to the Exchange Offer, UPC
is also exchanging its guarantee of the payment of Distributions (as defined
herein) and payments on liquidation or redemption of the Old Capital Securities
(the "Old Guarantee") for a like guarantee of the New Capital Securities (the
"New Guarantee") as well as exchanging all of its 8.20% Junior Subordinated
Deferrable Interest Debentures (the "Old Junior Subordinated Debt Securities"),
of which $206,186,000 aggregate principal amount is outstanding, for a like
aggregate principal amount of its 8.20% Junior Subordinated Deferrable Interest
Debentures (the "New Junior Subordinated Debt Securities"), which New Guarantee
and New Junior Subordinated Debt Securities also have been registered under the
Securities Act. The Old Capital Securities, the Old Guarantee and the Old Junior
Subordinated Debt Securities are collectively referred to herein as the "Old
Securities" and the New Capital Securities, the New Guarantee and the New Junior
Subordinated Debt Securities are collectively referred to herein as the "New
Securities."
The terms of the New Securities are identical in all material respects to
the respective terms of the Old Securities, except that (i) the New Securities
will have been registered under the Securities Act and therefore will not be
subject to certain restrictions on transfer applicable to the Old Securities and
(ii) holders of New Capital Securities will not be entitled to certain rights of
holders of Old Capital Securities under the Registration Rights Agreement (as
defined herein) which will terminate upon the consummation of this Exchange
Offer. The New Capital Securities are being offered for exchange in order to
satisfy certain obligations of UPC and the Trust under the Registration Rights
Agreement dated as of December 5, 1996 (the "Registration Rights Agreement")
among UPC, the Trust and Salomon Brothers Inc, Morgan Stanley & Co.,
Incorporated and Stifel Nicolaus & Company, Incorporated (the "Initial
Purchasers"). In the event that the Exchange Offer is consummated, any Old
Capital Securities which remain outstanding after consummation of the Exchange
Offer and the New Capital Securities issued in the Exchange Offer will vote
together as a single class for purposes of determining whether holders of the
requisite percentage in outstanding Liquidation Amount of such Capital
Securities have taken certain actions or exercised certain rights under the
Declaration (as defined below).
The New Subordinated Debt Securities and the New Guarantee, when issued,
will be unsecured obligations of UPC and will be subordinate and junior in right
of payment to other indebtedness of UPC, as described herein. Upon an event of
default under the Declaration (as defined herein) in respect of the Trust, the
holders of Capital Securities will have a preference over the holders of the
Common Securities with respect to payments in respect of Distributions and
payments upon redemption, liquidation and otherwise.
The New Capital Securities (as defined herein) and the Old Capital
Securities (as defined herein) (together, the "Capital Securities"), represent
beneficial interests in the Trust. UPC is the owner of all of the beneficial
interests represented by the common securities of the Trust (as defined herein)
(the "Common Securities" and, collectively with the Capital Securities, the
"Trust Securities"). The First National Bank of Chicago is the Institutional
Trustee of the Trust. The Trust exists for the sole purpose of issuing the Trust
Securities and investing the proceeds thereof in the Old Subordinated Debt
Securities and New Subordinated Debt Securities (together, the "Subordinated
Debt Securities"). The Subordinated Debt Securities will mature on December 15,
2026.
------------------
SEE "RISK FACTORS" COMMENCING ON PAGE 12 FOR CERTAIN INFORMATION THAT
SHOULD BE CONSIDERED BY HOLDERS WHO TENDER OLD CAPITAL SECURITIES IN THE
EXCHANGE OFFER.
------------------
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY.
------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------
The date of this Prospectus is , 1997.
<PAGE> 3
Holders of the Capital Securities are entitled to receive cumulative cash
distributions at an annual rate of 8.20% per annum of the liquidation amount of
$1,000 per Capital Security, accruing from December 12, 1996 and (subject to the
extensions of distribution payment periods described below) payable semiannually
in arrears on June 15 and December 15 of each year, commencing June 15, 1997
("Distributions"). The payment of Distributions on the Capital Securities out of
moneys held by the Trust and payments on liquidation of the Trust or the
redemption of Capital Securities, as set forth below, are guaranteed by UPC (the
"Guarantee") to the extent described herein. The Guarantee covers payments of
Distributions and other payments on the Capital Securities only if and to the
extent that the Trust has funds available therefor, which funds will not be
available except to the extent that UPC has made payments of interest or
principal (or premium, if any) or other payments on the Subordinated Debt
Securities held by the Trust.
The Guarantee, when taken together with UPC's obligations under the
Subordinated Debt Securities, the Declaration (as defined below) and the
Indenture (as defined below), including UPC's obligations to pay costs,
expenses, debts and other obligations of the Trust (other than with respect to
the Trust Securities), provides a full and unconditional guarantee on a
subordinated basis by UPC of amounts due on the Capital Securities. See "Risk
Factors -- Guarantee Covers Distributions and Other Payments Only to the Extent
the Trust Has Available Funds; Related Remedies" herein. The obligations of UPC
under the Guarantee and Subordinated Debt Securities are subordinate and junior
in right of payment to all present and future Senior Indebtedness (as defined
herein) of UPC and are also effectively subordinate to claims of creditors of
UPC's subsidiaries. UPC had approximately $174.5 million of Senior Indebtedness
as of December 31, 1996. There are no terms in the Subordinated Debt Securities,
the Capital Securities or the Guarantee that limit the ability of UPC or any of
its subsidiaries to incur additional indebtedness, including indebtedness that
ranks senior to the Subordinated Debt Securities and the Guarantee.
The distribution rate and the distribution payment dates and other payment
dates for the Capital Securities will correspond to the interest rate and
interest payment dates on the Subordinated Debt Securities held by the Trust,
which are and will continue to be the sole asset of the Trust. As a result, if
no principal (or premium, if any) or interest is paid by UPC on the Subordinated
Debt Securities, the Trust will not have sufficient funds to make Distributions
on the Capital Securities, and the Guarantee will not apply to Distributions for
which the Trust has insufficient funds available.
UPC has the right, subject to the conditions set forth herein, to defer
payments of interest on the Subordinated Debt Securities by extending the
interest payment period on the Subordinated Debt Securities at any time and from
time to time for up to 10 consecutive semiannual periods (each such extended
interest payment period, an "Extension Period"), provided no Extension Period
may extend beyond the maturity of the Subordinated Debt Securities. If interest
payments on the Subordinated Debt Securities are so deferred, Distributions on
the Capital Securities will also be deferred. During any such Extension Period,
Distributions will continue to accrue at the distribution rate equal to 8.20%
per annum for Capital Securities, compounded semiannually (to the extent
permitted by applicable law), and holders of the Capital Securities will be
subject to United States federal income tax on the deferred amounts in advance
of receipt of cash distributions with respect to such deferred interest
payments. There could be multiple Extension Periods of varying lengths, each up
to 10 consecutive semiannual periods, throughout the term of the Subordinated
Debt Securities. See "Description of the Subordinated Debt Securities -- Option
to Extend Interest Payment Period," "Risk Factors -- Option to Extend Interest
Payment Period" and "United States Federal Income Taxation -- US
Holders -- Original Issue Discount."
The Subordinated Debt Securities are redeemable by UPC at the Call Price
(as defined herein), plus accrued and unpaid interest to the date of redemption,
in whole or in part, at any time and from time to time, on or after December 15,
2006. In certain limited circumstances, upon the occurrence of a Tax Event (as
defined herein), the Subordinated Debt Securities are also redeemable by UPC at
par, together with accrued and unpaid interest thereon to the date of the
redemption, in whole or in part, at any time. Either type of redemption prior to
maturity is subject to UPC having received prior approval from the Board of
Governors of the Federal Reserve System (the "Federal Reserve"), if then
required under applicable capital guidelines or policies of the Federal Reserve.
Upon the redemption or maturity of the Subordinated Debt Securities, the Trust
must redeem on a pro rata basis its
i
<PAGE> 4
Trust Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Subordinated Debt Securities so redeemed or matured at a
redemption price (the "Redemption Price") equal to (i) $1,000 per Trust
Security, redeemed either upon the maturity of the Subordinated Debt Securities
or upon the occurrence and continuation of a Tax Event, under certain limited
circumstances as described herein, or (ii) in the case of Optional Redemptions
(as defined herein) of Subordinated Debt Securities, an amount per Trust
Security equal to the product of $1,000 and the applicable percentage used to
determine the Call Price for the Subordinated Debt Securities being redeemed,
plus in all cases, accrued and unpaid Distributions on such Trust Securities to
the date fixed for redemption. See "Description of the Capital
Securities -- Redemption." The Capital Securities will be redeemed upon maturity
of the Subordinated Debt Securities, whereupon the Trust will be dissolved. See
"Description of the Capital Securities -- Tax Event Redemption" and "Description
of the Subordinated Debt Securities."
UPC, as the holder of all of the outstanding Common Securities of the
Trust, has the right at any time, subject to the receipt of prior approval by
the Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve, to dissolve the Trust (including, without
limitation, upon the occurrence of a Tax Event). In any such dissolution, after
satisfaction of liabilities to creditors of the Trust, the Subordinated Debt
Securities must be distributed to the holders of the Trust Securities on a pro
rata basis in accordance with the aggregate stated liquidation amount thereof in
liquidation of the Trust.
In the event of the involuntary or voluntary dissolution of the Trust,
other than in connection with a redemption of Subordinated Debt Securities as
described above, after satisfaction of liabilities to creditors of the Trust (to
the extent not satisfied by UPC), the holders of the Capital Securities
generally will be entitled to receive a Liquidation Amount (as defined herein)
plus accumulated and unpaid Distributions thereon to the date of payment,
unless, in connection with such dissolution, the Subordinated Debt Securities
held by the Trust are distributed to the holders of the Trust Securities as
would be required in certain circumstances. See "Description of the Capital
Securities -- Liquidation Distribution upon Dissolution."
The Capital Securities will be issued and may be transferred only in blocks
having a stated liquidation amount of not less than $100,000 (100 Capital
Securities). See "Description of the Capital Securities -- Restrictions on
Transfer." UPC and the Trust have applied for listing of the Capital Securities
issued in the Exchange Offer as debt securities on the New York Stock Exchange
("NYSE"). Should UPC and the Trust fail to obtain approval for listing the
Capital Securities on the NYSE, then UPC and the Trust may apply to qualify the
Capital Securities issued in the Exchange Offer for quotation through the
National Association of Securities Dealers Automated Quotation System
("NASDAQ"). If the Subordinated Debt Securities are distributed to the holders
of the Capital Securities and the Capital Securities are then listed on the NYSE
or quoted on the NASDAQ, then UPC will use its reasonable best efforts to have
the Subordinated Debt Securities listed on the NYSE or quoted on the NASDAQ as
the Capital Securities are then listed.
Based on interpretations by the staff of the Securities and Exchange
Commission (the "Commission"), as set forth in no-action letters issued to third
parties, UPC and the Trust believe that the New Capital Securities issued
pursuant to the Exchange Offer may be offered for resale, resold or otherwise
transferred by holders thereof (other than any holder that is an "affiliate" of
UPC or the Trust as defined under Rule 405 of the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such New Capital Securities are acquired in the
ordinary course of such holders' business and such holders are not engaged in,
and do not intend to engage in, a distribution of such New Capital Securities
and have no arrangement or understanding with any person to participate in the
distribution of such New Capital Securities. However, the staff of the
Commission has not considered this particular Exchange Offer in the context of a
no-action letter, and there can be no assurance that the staff of the Commission
would make a similar determination with respect to this Exchange Offer as in
such other circumstances. By tendering the Old Capital Securities in exchange
for New Capital Securities, each holder, other than a broker-dealer, will
represent to UPC and the Trust that: (i) it is not an affiliate of either UPC or
the Trust (as defined under Rule 405 of the Securities Act); (ii) any New
Capital Securities to be received by it were acquired in the ordinary course of
its business; and (iii) it is not engaged in, and it does not intend to engage
in, a distribution (within the meaning of the Securities Act) of the New Capital
Securities and it has no arrangement or understanding to participate in a
distribution of the New Capital Securities.
ii
<PAGE> 5
Each broker-dealer that receives New Capital Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Capital Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of New Capital Securities received in exchange for
Old Capital Securities where such Old Capital Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. UPC and the Trust have agreed that they will make this Prospectus
available to any broker-dealer for use in connection with any such resale until
December 12, 1997. See "Plan of Distribution."
Prior to the Exchange Offer there has been only a limited secondary market
and no public market for the Old Capital Securities. The New Capital Securities
will be a new issue of securities for which there currently is no market.
Although the Initial Purchasers have informed UPC and the Trust that they each
currently intend to make a market in the New Capital Securities, they are not
obligated to do so and any such market making may be discontinued at any time
without notice. Accordingly, there can be no assurance as to the development or
liquidity of any market for the New Capital Securities. UPC and the Trust have
applied to the NYSE for listing of the New Capital Securities as debt
securities. In the event the New Capital Securities are approved for and listed
on the NYSE, there is no assurance as to the development of liquidity of any
market for the New Capital Securities.
Any Old Capital Securities not tendered and accepted in the Exchange Offer
will remain outstanding and will be entitled to all the same rights and will be
subject to the same limitations applicable thereto under the Declaration (except
for those rights which terminate upon consummation of the Exchange Offer
including, but not limited to, a step-up in the distribution rate). Following
consummation of the Exchange Offer, the holders of Old Capital Securities will
continue to be subject to all of the existing restrictions upon transfer thereof
and neither UPC nor the Trust will have any further obligation to such holders
(other than under certain limited circumstances) to provide for registration
under the Securities Act of the Old Capital Securities held by them. To the
extent that Old Capital Securities are tendered and accepted in the Exchange
Offer, a holder's ability to sell untendered Old Capital Securities could be
adversely affected. See "Risk Factors -- Consequences of a Failure to Exchange
Old Capital Securities."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION. HOLDERS OF OLD CAPITAL SECURITIES ARE URGED TO READ THIS PROSPECTUS
AND THE RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING WHETHER TO
TENDER THEIR OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER.
Old Capital Securities may be tendered for exchange on or prior to 5:00
p.m., New York City time, on , 1997 (such time on such date being
hereinafter called the "Expiration Date"), unless the Exchange Offer is extended
by UPC and the Trust (in which case the term "Expiration Date" shall mean the
latest date and time to which the Exchange Offer is extended). Tenders of Old
Capital Securities may be withdrawn at any time on or prior to the Expiration
Date. The Exchange Offer is not conditioned upon any minimum Liquidation Amount
of Old Capital Securities being tendered for exchange. However, the Exchange
Offer is subject to certain events and conditions which may be waived by UPC or
the Trust and to the terms and provisions of the Registration Rights Agreement.
Old Capital Securities may be tendered in whole or in part having a Liquidation
Amount of not less than $100,000 (100 Capital Securities) and or any integral
multiple of $1,000 Liquidation Amount (1 Capital Security) in excess thereof.
UPC has agreed to pay all expenses of the Exchange Offer. See "The Exchange
Offer -- Fees and Expenses." Each New Capital Security will pay cumulative
Distributions from the most recent Distribution Date (as defined herein) on the
Old Capital Securities surrendered in exchange for such New Capital Securities
or, if no Distributions have been paid on such Old Capital Securities, from
December 12, 1996. Holders of the Old Capital Securities whose Old Capital
Securities are accepted for exchange will not receive accumulated Distributions
on such Old Capital Securities for any period from and after the last
Distribution Date on such Old Capital Securities prior to the original issue
date of the New Capital Securities or, if no such Distributions have been paid,
will not receive any accumulated Distributions on such Old Capital Securities,
and will be deemed to have waived the right to receive any Distributions on such
Old Capital
iii
<PAGE> 6
Securities accumulated from and after such Distribution Date or, if no such
interest has been paid or duly provided for, from and after December 12, 1996.
This Prospectus, together with the Letter of Transmittal, is being sent to all
registered holders of Old Capital Securities as of , 1997.
Neither UPC nor the Trust will receive any cash proceeds from the issuance
of the New Capital Securities offered hereby. No dealer-manager is being used in
connection with this Exchange Offer. See "Use of Proceeds" and "Plan of
Distribution."
iv
<PAGE> 7
TABLE OF CONTENTS
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AVAILABLE INFORMATION....................................... 1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............. 1
SUMMARY..................................................... 3
RISK FACTORS................................................ 12
CAPITALIZATION.............................................. 18
UNION PLANTERS CORPORATION.................................. 21
THE EXCHANGE OFFER.......................................... 22
DESCRIPTION OF THE CAPITAL SECURITIES....................... 30
DESCRIPTION OF THE GUARANTEE................................ 43
DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES............. 45
EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED DEBT SECURITIES
AND THE GUARANTEE......................................... 55
PLAN OF DISTRIBUTION........................................ 56
UNITED STATES FEDERAL INCOME TAXATION....................... 56
ERISA CONSIDERATIONS........................................ 60
LEGAL MATTERS............................................... 62
EXPERTS..................................................... 62
</TABLE>
v
<PAGE> 8
AVAILABLE INFORMATION
UPC is subject to the informational requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith, files
reports, proxy statements and other information with the Commission. Such
reports, proxy statements and other information can be inspected and copied at
the public reference facilities of the Commission at Room 1024, 450 Fifth
Street, N.W., Washington D.C. 20549 and at the regional offices of the
Commission located at 7 World Trade Center, 13th Floor, Suite 1300, New York,
New York 10048 and Suite 1400, Citicorp Center, 14th Floor, 500 West Madison
Street, Chicago, Illinois 60661. Copies of such material can also be obtained at
prescribed rates by writing to the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549. Such information may also be
accessed electronically by means of the Commission's home page on the Internet
(http://www.sec.gov). In addition, such reports, proxy statements and other
information concerning UPC can be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005 on which exchange
securities of UPC are listed.
No separate financial statements of the Trust have been included herein.
UPC and the Trust do not consider that such financial statements would be
material to holders of the Capital Securities because the Trust is a newly
formed special purpose entity, has no operating history or independent
operations and is not engaged in, and does not propose to engage in, any
activity other than holding as trust assets the Subordinated Debt Securities and
issuing the Trust Securities and UPC has guaranteed the obligations of the
Trust. See "Union Planters Capital Trust A", "Description of the Capital
Securities", "Description of the Subordinated Debt Securities" and "Description
of the Guarantee". In addition, UPC does not expect that the Trust will file
reports under the Exchange Act with the Commission.
This Prospectus constitutes part of a registration statement on Form S-4
("Registration Statement") filed by UPC and the Trust with the Commission under
the Securities Act. This Prospectus does no contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission, and reference is
hereby made to the Registration Statement and to the exhibits relating thereto
for further information with respect to UPC, the Trust and the Capital
Securities. Any statements contained herein concerning the provisions of any
document are not necessarily complete, and, in each instance, reference is made
to the copy of such document as filed as an exhibit to the Registration
Statement or otherwise filed with the Commission. Each such statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission by UPC
pursuant to the Exchange Act (under Commission File No. 1-10160 except as
otherwise indicated) are hereby incorporated by reference herein: UPC's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996 (including
Exhibit 13 thereto to the extent incorporated therein); UPC's Current Report on
Form 8-K dated January 16, 1997; and UPC's Registration Statement on Form 8-A
dated January 19, 1989, filed on February 1, 1989 (Commission file No. 0-6919),
in connection with UPC's designation and authorization of its Series A preferred
stock to be issued, if ever, in connection with UPC's Shareholder Rights Plan.
UPC's Annual Report on Form 10-K for the year ended December 31, 1996
incorporates by reference specific portions of the UPC's Annual Report to
Shareholders for that year (UPC's "Annual Report to Shareholders" which is
Exhibit 13 to said Form 10-K) but does not incorporate other portions of UPC's
Annual Report to Shareholders. The portion of UPC's Annual Report to
Shareholders captioned "Letter to Shareholders" and certain other portions of
UPC's Annual Report to Shareholders not specifically incorporated into UPC's
Annual Report on Form 10-K are not incorporated herein.
All documents filed by UPC pursuant to Sections 13(a), 13(c), 14, or 15(d)
of the Exchange Act after the date of this Prospectus and prior to the
termination of any offering of securities under this Prospectus shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a document,
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes hereof to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated by reference herein
1
<PAGE> 9
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part hereof, except as so
modified or superseded.
This Prospectus incorporates documents by reference which are not presented
herein or delivered herewith. Copies of these documents (other than exhibits to
such documents unless such exhibits are specifically incorporated herein by
reference) are available without charge upon the written or oral request of any
person, including any beneficial owner, to whom this Prospectus is delivered.
Such requests for documents relating to UPC should be directed to Union Planters
Corporation, Post Office Box 387, Memphis, Tennessee 38147, telephone (901)
580-6028, Attention: Secretary. Requests should be made not less than five days
prior to the date needed in order to ensure timely delivery of the documents.
As used herein, the terms "Prospectus" and "herein" mean this Prospectus,
including such documents incorporated or deemed to be incorporated herein by
reference, as the same may be amended, supplemented or otherwise modified from
time to time. Statements contained in this Prospectus as to the contents of any
contract or other document referred to herein do not purport to be complete, and
where reference is made to the particular provisions of such contract or other
document, such provisions are qualified in all respects by reference to all of
the provisions of such contract or other document.
2
<PAGE> 10
SUMMARY
The following summary is qualified in its entirety by the more detailed
information and the financial statements, including the notes thereto, appearing
elsewhere or incorporated by reference into this Prospectus. Prospective
investors should consider carefully the factors set forth herein under "Risk
Factors." As used in this Prospectus, "UPC" includes its respective predecessors
and subsidiaries, except as the context otherwise may require.
UNION PLANTERS CAPITAL TRUST A
The Trust is a statutory business trust formed under Delaware law pursuant
to (i) a Declaration of Trust executed by UPC, as Sponsor, and the Union
Planters Trustees (as defined herein), and (ii) the filing of a certificate of
trust with the Delaware Secretary of State on December 4, 1996. The Trust exists
for the exclusive purposes of (i) issuing the Trust Securities and the Exchange
Securities, (ii) investing the gross proceeds from the sale of the Trust
Securities to acquire the Subordinated Debt Securities issued by UPC, and (iii)
engaging in only those other activities necessary or incidental thereto.
Accordingly, the Subordinated Debt Securities are and will continue to be the
sole assets of the Trust, and payments under the Subordinated Debt Securities
are and will continue to be the sole revenues of the Trust. All of the Common
Securities will be owned by UPC. The principal place of business of the Trust is
c/o Union Planters Corporation, 7130 Goodlett Farms Parkway, Memphis, Tennessee
38018, and its telephone number is (901) 580-6000.
UNION PLANTERS CORPORATION
UPC is a $15.2 billion multi-state bank holding company headquartered in
Memphis, Tennessee whose primary business is banking. UPC is the largest bank
holding company headquartered in Tennessee and one of the fifty largest bank
holding companies headquartered in the United States. UPC conducts its business
activities through its principal bank subsidiary, the $6.0-billion-asset Union
Planters National Bank ("UPNB"), founded in 1869 and headquartered in Memphis,
Tennessee, and through 36 other bank subsidiaries located in Tennessee,
Mississippi, Missouri, Arkansas, Louisiana, Alabama and Kentucky (collectively,
the "Banking Subsidiaries"). Through its Banking Subsidiaries, UPC provides a
diversified range of financial services in the communities in which it operates,
including traditional banking services; consumer, commercial and corporate
lending; retail banking; and mortgage banking. UPC also is engaged in mortgage
servicing; investment management and trust services; the issuance and servicing
of credit and debit cards; the origination, packaging and securitization of the
U.S. Government-guaranteed portions of Small Business Administration loans; the
purchase of certain delinquent Federal Housing Administration and Department of
Veterans Affairs ("FHA/VA") government-insured/guaranteed loans from the
Government National Mortgage Association ("GNMA") and other parties; full
service and discount brokerage services; and the sale of annuities and certain
bank-eligible insurance products. Through its Banking Subsidiaries, UPC operates
438 banking offices and 544 ATMs.
UPC is a legal entity separate and distinct from UPNB and its other Banking
Subsidiaries and affiliates. Because UPC is a holding company, its rights and
the rights of its creditors and shareholders, including the holders of the
Subordinated Debt Securities and the Guarantee, to participate in the assets of
any subsidiary upon its liquidation or recapitalization will be subject to the
prior claims of such subsidiary's creditors, except to the extent that UPC may
itself be a creditor having recognized claims against such subsidiary, in which
case it will share in such subsidiary's assets along with other creditors.
There are various legal and regulatory limitations on the extent to which
UPC's Banking Subsidiaries may extend credit, pay dividends or otherwise supply
funds to UPC. The approval of the Office of the Comptroller of the Currency is
required if total dividends declared by a national bank in any calendar year
should exceed net profits for that year combined with its retained net profits
for the preceding two years. Moreover, banks may not pay dividends in excess of
their undivided profits. In determining whether and to what extent to pay
dividends, each Banking Subsidiary must also consider the effect of dividend
payments on applicable risk-based capital and leverage requirements as well as
policy statements of the federal regulatory agencies that, generally, banking
organizations should pay dividends out of current operating earnings. In
addition there are numerous governmental requirements and regulations which
affect the activities of UPC and its bank and non-bank subsidiaries.
3
<PAGE> 11
UPC's corporate office is located at 7130 Goodlett Farms Parkway, Memphis,
Tennessee 38018, and its telephone number is (901) 580-6000. Additional
information concerning UPC is included in the documents incorporated by
reference into this Prospectus. See "Available Information" and "Incorporation
of Certain Documents by Reference."
THE EXCHANGE OFFER
The Exchange Offer......... Up to $200,000,000 aggregate Liquidation Amount of
New Capital Securities are being offered in
exchange for a like aggregate Liquidation Amount of
Old Capital Securities. Old Capital Securities may
be tendered for exchange in whole or in part in a
Liquidation Amount of $100,000 (100 Capital
Securities) or any integral multiple of $1,000 in
excess thereof. UPC and the Trust are making the
Exchange Offer in order to satisfy their
obligations under the Registration Rights Agreement
relating to the Old Capital Securities. For a
description of the procedures for tendering Old
Capital Securities, see "The Exchange
Offer -- Procedures for Tendering Old Capital
Securities."
Expiration Date............ 5:00 p.m., New York City time, on ,
1997 (such time on such date being hereinafter
called the "Expiration Date") unless the Exchange
Offer is extended by UPC and the Trust (in which
case the term "Expiration Date" shall mean the
latest date and time to which the Exchange Offer is
extended). See "The Exchange Offer -- Expiration
Date; Extensions; Amendments."
Conditions to the
Exchange Offer........... The Exchange Offer is subject to certain
conditions, which may be waived by UPC and the
Trust in their sole discretion. The Exchange Offer
is not conditioned upon any minimum Liquidation
Amount of Old Capital Securities being tendered.
See "The Exchange Offer -- Conditions to the
Exchange Offer."
UPC and the Trust reserve the right in their sole
and absolute discretion, subject to applicable law,
at any time and from time to time, (i) to delay the
acceptance of the Old Capital Securities for
exchange, (ii) to terminate the Exchange Offer if
certain specified conditions have not been
satisfied, (iii) to extend the Expiration Date of
the Exchange Offer and retain all Old Capital
Securities tendered pursuant to the Exchange Offer,
subject, however, to the right of holders of Old
Capital Securities to withdraw their tendered Old
Capital Securities, or (iv) to waive any condition
or otherwise amend the terms of the Exchange Offer
in any respect. See "The Exchange
Offer -- Expiration Date; Extensions; Amendments."
Listing.................... UPC and the Trust have applied for listing of the
Capital Securities issued in the Exchange Offer as
debt securities on the NYSE. Should for some reason
the Capital Securities issued in the Exchange Offer
fail to be approved for listing on the NYSE, UPC
and the Trust may apply for such Capital Securities
to be approved for quotation on the NASDAQ. If the
Subordinated Debt Securities are distributed to
holders of the Capital Securities, and the Capital
Securities are then listed on the NYSE or quoted on
the NASDAQ, UPC will use its reasonable best
efforts to have the Subordinated Debt Securities
listed on such exchange or for such quotation as
the Capital Securities are then listed.
4
<PAGE> 12
Withdrawal Rights.......... Tenders of Old Capital Securities may be withdrawn
at any time on or prior to the Expiration Date by
delivering a written notice of such withdrawal to
the Exchange Agent in conformity with certain
procedures set forth below under "The Exchange
Offer -- Withdrawal Rights."
Procedures for Tendering
Old Capital Securities... Tendering holders of Old Capital Securities must
complete and sign a Letter of Transmittal in
accordance with the instructions contained therein
and forward the same by mail, facsimile
transmission or hand delivery, together with any
other required documents, to the Exchange Agent,
either with the Old Capital Securities to be
tendered or in compliance with the specified
procedures for guaranteed delivery of Old Capital
Securities. Certain brokers, dealers, commercial
banks, trust companies and other nominees may also
effect tenders by book-entry transfer. Holders of
Old Capital Securities registered in the name of a
broker, dealer, commercial bank, trust company or
other nominee are urged to contact such person
promptly if they wish to tender Old Capital
Securities pursuant to the Exchange Offer. See "The
Exchange Offer -- Procedures for Tendering Old
Capital Securities."
Letters of Transmittal and certificates
representing Old Capital Securities should not be
sent to UPC or the Trust. Such documents should
only be sent to the Exchange Agent. Questions
regarding how to tender and requests for
information should be directed to the Exchange
Agent. See "The Exchange Offer -- Exchange Agent."
Resales of New
Capital Securities....... Based on interpretations by the staff of the
Commission, as set forth in no-action letters
issued to third parties, UPC and the Trust believe
that holders of Old Capital Securities (other than
any holder that is an "affiliate" of UPC or the
Trust as defined under Rule 405 of the Securities
Act) who exchange their Old Capital Securities for
New Capital Securities pursuant to the Exchange
Offer may offer such New Capital Securities for
resale, resell such New Capital Securities and
otherwise transfer such New Capital Securities
without compliance with the registration and
prospectus delivery provisions of the Securities
Act, provided that such New Capital Securities are
acquired in the ordinary course of such holders'
business and such holders are not engaged in, and
do not intend to engage in, a distribution of such
New Capital Securities and have no arrangement or
understanding with any person to participate in the
distribution of such New Capital Securities.
However, the staff of the Commission has not
considered the Exchange Offer in the context of a
no-action letter, and there can be no assurance
that the staff of the Commission would make a
similar determination with respect to the Exchange
Offer. Each broker-dealer that receives New Capital
Securities for its own account in exchange for Old
Capital Securities, where such Old Capital
Securities were acquired by such broker-dealer as a
result of market-making activities or other trading
activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such
New Capital Securities. See "Plan of Distribution."
Exchange Agent............. The exchange agent with respect to the Exchange
Offer is The First National Bank of Chicago (the
"Exchange Agent"). The addresses, and telephone and
facsimile numbers of the Exchange Agent are set
forth in "The Exchange Offer -- Exchange Agent" and
in the Letter of Transmittal.
5
<PAGE> 13
Use of Proceeds............ Neither UPC nor the Trust will receive any cash
proceeds from the issuance of the New Capital
Securities offered hereby. See "Use of Proceeds."
Certain Federal Income Tax
Consequences; ERISA
Considerations........... Holders of Old Capital Securities should review the
information set forth under "Certain Federal Income
Tax Consequences" and "ERISA Considerations" prior
to tendering Old Capital Securities in the Exchange
Offer.
THE CAPITAL SECURITIES
Securities Offered......... Up to $200,000,000 aggregate Liquidation Amount of
New Capital Securities which have been registered
under the Securities Act (Liquidation Amount $1,000
per Capital Security). The terms of the New Capital
Securities are identical in all material respects
to the terms of the Old Capital Securities, except
that the New Capital Securities have been
registered under the Securities Act and therefore
are not subject to certain restrictions on transfer
applicable to the Old Capital Securities, and
holders of New Capital Securities will not be
entitled to certain rights of holders of Old
Capital Securities under the Registration Rights
Agreement which will terminate upon the
consummation of this Exchange Offer. See "The
Exchange Offer -- Purpose of the Exchange Offer,"
"Description of the New Securities" and
"Description of the Old Securities." The New
Capital Securities will be issued and the Old
Capital Securities were issued under the
Declaration. The New Capital Securities and any Old
Capital Securities which remain outstanding after
consummation of the Exchange Offer will constitute
a single series of Capital Securities under the
Declaration and, accordingly, will vote together as
a single class for purposes of determining whether
holders of the requisite percentage in outstanding
Liquidation Amount thereof have taken certain
actions or exercised certain rights under the
Declaration. See "Description of the New
Securities -- Description of Capital
Securities -- General."
General.................... The Capital Securities represent undivided
beneficial interests in the Trust's assets, which
will consist solely of the Subordinated Debt
Securities. The Subordinated Debt Securities, in
which the proceeds of the Trust Securities are
invested, mature on December 15, 2026, unless the
Subordinated Debt Securities are redeemed by UPC
prior to such maturity as described under
"Description of the Capital
Securities -- Redemption" and "Description of the
Capital Securities -- Tax Event Redemption."
Distributions.............. The Distributions payable on the Capital Securities
will be fixed at a rate per annum of 8.20% of the
stated liquidation amount of $1,000 per Capital
Security, will be cumulative, will accrue from
December 12, 1996, the date of issuance of the Old
Capital Securities, and (subject to the extension
of distribution payment periods described below)
will be payable semiannually, in arrears, on June
15 and December 15 of each year, commencing June
15, 1997. See "Description of the Capital
Securities -- Distributions."
Option to Extend Interest
Payment Period........... UPC has the right, at any time, subject to certain
conditions, to defer payments of interest on the
Subordinated Debt Securities for Extension Periods,
each not exceeding 10 consecutive semiannual
periods; provided,
6
<PAGE> 14
however, that no Extension Period may extend beyond
the maturity date of the Subordinated Debt
Securities. As a consequence of UPC's extension of
the interest payment period on the Subordinated
Debt Securities, Distributions on the Capital
Securities would likewise be deferred (though such
Distributions would continue to accrue with
interest thereon compounded semiannually (to the
extent permitted by law)), since interest would
continue to accrue, with interest thereon
compounded semiannually on the Subordinated Debt
Securities during any such Extension Period. In the
event UPC exercises its right to extend an interest
payment period, then during any Extension Period,
subject to certain exceptions, (i) UPC shall not
declare or pay any dividends on, make any
distributions 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, or make any guarantee payments
with respect to the foregoing and (ii) UPC shall
not make any payment of interest on or principal of
(or premium, if any, on), or repay, repurchase or
redeem, any debt securities issued by UPC which
rank pari passu with or junior to the Subordinated
Debt Securities. Upon the termination of any
Extension Period and the payment of all amounts
then due, UPC may commence a new Extension Period,
subject to certain requirements. See "Description
of the Subordinated Debt Securities -- Option to
Extend Interest Payment Period." Should an
Extension Period occur with respect to the Capital
Securities, holders of Capital Securities will
continue to recognize interest income for United
States federal income tax purposes. As a result,
such holders will be required to include such
interest in gross income for United States federal
income tax purposes in advance of the receipt of
cash, and such holders will not receive the cash
from the Trust related to such income if such
holders dispose of Capital Securities prior to the
record date for payment of distributions. See
"United States Federal Income Taxation -- US
Holders -- Original Issue Discount."
Liquidation................ UPC, as the holder of all of the Common Securities,
has the right at any time to dissolve the Trust
(including but not limited to the occurrence of a
Tax Event), subject to certain conditions, with the
result that, after satisfaction of liabilities to
creditors of the Trust (to the extent not satisfied
by UPC), the Subordinated Debt Securities would be
distributed to the holders of the Trust Securities
in liquidation of the holders' interests in the
Trust on a pro rata basis in accordance with its
aggregate stated liquidation amount thereof, in
liquidation of the Trust. In addition, the Trust
will be liquidated under certain other
circumstances. See "Description of the Capital
Securities -- Liquidation Distribution upon
Dissolution."
Liquidation Amount......... In the event of the liquidation of the Trust, after
satisfaction of liabilities to creditors of the
Trust (to the extent not satisfied by UPC) holders
of Capital Securities issued by the Trust will be
entitled to receive $1,000 per Capital Security
plus an amount equal to accrued and unpaid
Distributions thereon to the date of payment,
unless the Subordinated Debt Securities are
distributed to holders of Trust Securities. See
"Description of the Capital
Securities -- Liquidation Distribution Upon
Dissolution."
Maturity................... Upon the repayment of the Subordinated Debt
Securities at maturity, the proceeds from such
repayment will be applied by the Institutional
Trustee to redeem a like amount of Trust
Securities, upon the terms and conditions
7
<PAGE> 15
described herein. See "Description of the Capital
Securities -- Redemption."
Optional Redemption........ UPC has the right to redeem the Subordinated Debt
Securities on or after December 15, 2006, in whole
at any time or in part from time to time, subject
to the conditions described in "Description of the
Subordinated Debt Securities -- Redemption," at the
Call Price described herein, together with accrued
and unpaid interest to the date of redemption.
Tax Event Redemption....... If at any time a Tax Event should occur and would
continue despite liquidation of the Trust and
distribution of the Subordinated Debt Securities to
the holders of the Trust Securities, UPC may,
within 90 days of the occurrence of such Tax Event,
redeem the Subordinated Debt Securities in whole or
in part at a redemption price equal to the
aggregate of the principal amounts to be redeemed
plus any accrued and unpaid interest to the
redemption date. Upon the redemption of the
Subordinated Debt Securities, the proceeds of such
redemption will be applied by the Institutional
Trustee to redeem a like amount of Trust Securities
at the applicable redemption price, upon the terms
and conditions described herein. See "Description
of the Capital Securities -- Tax Event Redemption."
Voting Rights.............. Generally, the holders of the Capital Securities
will not have any voting rights. See "Description
of the Capital Securities -- Voting Rights."
The Guarantee.............. The payment of Distributions out of moneys held by
the Trust, payments on liquidation of the Trust and
payment upon the redemption of Capital Securities
are guaranteed by UPC as described herein under
"Description of the Guarantee." The Guarantee
covers payments of Distributions and other payments
on the Capital Securities only if and to the extent
that the Trust has funds available therefor, which
funds will not be available except to the extent
that UPC has made payments of interest (or premium,
if any) or principal or other payments on the
Subordinated Debt Securities. The Guarantee, when
taken together with UPC's obligations under the
Subordinated Debt Securities and the Indenture,
including UPC's obligations to pay costs, expenses,
debts and other liabilities of the Trust (other
than with respect to the Trust Securities), provide
a full and unconditional guarantee on a
subordinated basis by UPC of amounts due on the
Capital Securities.
Ranking.................... The Common Securities rank pari passu, and payments
thereon will be made pro rata with the Capital
Securities, except that upon the occurrence and
during the continuance of a Declaration Event of
Default (as defined herein) under the Trust, the
rights of the holders of the Common Securities to
receive payment of periodic Distributions and
payments upon liquidation, redemption or otherwise
will be subordinated to the rights of the holders
of the Capital Securities. See "Description of the
Capital Securities -- General." The Subordinated
Debt Securities are unsecured and subordinate and
junior in right of payment to the extent and in the
manner set forth in the Indenture to all Senior
Indebtedness (as defined herein). See "Description
of the Subordinated Debt Securities." The Guarantee
constitutes an unsecured obligation of UPC and
ranks subordinate and junior in right of payment to
the extent and in the manner set forth in the
Guarantee to all Senior Indebtedness. See
"Description of the Guarantee."
Rating..................... The New Capital Securities are expected to be rated
"BB+" by Standard & Poor's Rating Services and
"baa1" by Moody's Investors Services, Inc. A
8
<PAGE> 16
security rating is not a recommendation to buy,
sell or hold securities and may be subject to
revision or withdrawal at any time by the assigning
rating organization.
Use of Proceeds............ Neither UPC nor the Trust will receive any cash
proceeds from the issuance of the New Capital
Securities offered hereby. UPC's proceeds from the
sale of the Old Subordinated Debt Securities were
added to its general funds and may be used for
general corporate purposes including working
capital and acquisitions of other financial
institutions. See "Use of Proceeds."
Form of Capital
Securities............... The Old Capital Securities are, and the New Capital
Securities will be, represented by a global
certificate or certificates registered in the name
of Cede & Co., as nominee for The Depository Trust
Company ("DTC"). Beneficial interests in the
Capital Securities will be evidenced by, and
transfers thereof will be effected only through,
records maintained by the participants in DTC.
Except in limited circumstances described herein,
Capital Securities in certificated form will not be
issued in exchange for the global certificate or
certificates. See "Description of the Capital
Securities -- Book-Entry Only Issuance -- The
Depository Trust Company."
Transfer Restrictions...... Capital Securities may be transferred only in
blocks having a Liquidation Amount of not less than
$100,000 (100 Capital Securities). Any such
transfer of Capital Securities in a block having a
Liquidation Amount of less than $100,000 shall be
deemed to be null and void and of no legal effect
whatsoever. See "Description of the Capital
Securities -- Restrictions on Transfer."
Absence of Market for
the Capital Securities... The New Capital Securities will be a new issue of
securities for which there is currently no market.
There can be no assurance as to the development of
liquidity of any market for the Capital Securities.
Due to the fact that Capital Securities may be
transferred in blocks having a Liquidation Amount
of not less than $100,000 (100 Capital Securities),
it is highly unlikely that a retail market in
Capital Securities will ever develop.
Trading Price.............. The New Capital Securities are expected to trade at
a price per Capital Security plus accrued and
unpaid distributions, if any, to the date of
settlement.
For additional information with respect to the Capital Securities, see
"Description of the Capital Securities," "Description of the Subordinated Debt
Securities," "Description of the Guarantee," and "United States Federal Income
Taxation."
RISK FACTORS
Holders tendering Old Capital Securities in the Exchange Offer should
carefully consider the matters set forth under "Risk Factors."
9
<PAGE> 17
UNION PLANTERS CORPORATION
SELECTED CONSOLIDATED FINANCIAL DATA
The following table presents selected consolidated financial data and other
operating information for UPC for each of the five years in the period ended
December 31, 1996. The information has been derived from the audited
consolidated financial statements of UPC incorporated into this Prospectus by
reference to UPC's 1996 Annual Report on Form 10-K for the year ended December
31, 1996 and should be read in conjunction therewith and with the notes thereto.
Historical results are not necessarily indicative of results to be expected for
any future period for UPC. See "INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE."
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,(1)
-------------------------------------------------------------------
1996 1995 1994 1993 1992
----------- ----------- ----------- ----------- -----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Net Interest income................................. $ 605,962 $ 535,997 $ 504,500 $ 439,290 $ 357,365
Provision for losses on loans....................... 57,395 27,381 9,661 22,660 37,367
Investment securities gains (losses)................ 4,081 409 (22,515) 3,508 11,880
Other noninterest income............................ 222,250 203,014 160,109 154,254 136,162
Noninterest expense................................. 570,634 452,635 486,836 408,888 362,028
----------- ----------- ----------- ----------- -----------
Earnings before income taxes, extraordinary item,
and accounting changes............................ 204,264 259,404 145,597 165,504 106,012
Applicable income taxes............................. 70,526 86,648 45,174 51,864 30,219
----------- ----------- ----------- ----------- -----------
Earnings before extraordinary item and accounting
changes........................................... 133,738 172,756 100,423 113,640 75,793
Extraordinary item and accounting changes, net of
tax............................................... -- -- -- 637 2,847
----------- ----------- ----------- ----------- -----------
Net earnings........................................ $ 133,738 $ 172,756 $ 100,423 $ 114,277 $ 78,640
=========== =========== =========== =========== ===========
PER COMMON SHARE DATA (2) & (5)
Primary
Earnings before extraordinary item and accounting
changes......................................... $ 1.95 $ 2.72 $ 1.52 $ 2.19 $ 1.75
Net earnings...................................... 1.95 2.72 1.52 2.20 1.75
Fully diluted
Earnings before extraordinary item and accounting
changes......................................... 1.92 2.64 1.52 2.14 1.73
Net earnings...................................... 1.92 2.64 1.52 2.15 1.73
Cash dividends...................................... 1.08 0.98 0.88 0.72 0.60
Book value.......................................... 19.55 18.52 15.42 14.80 14.08
BALANCE SHEET DATA (AT PERIOD END)
Total assets........................................ $15,222,563 $14,383,222 $13,425,063 $11,866,609 $10,180,375
Loans, net of unearned income....................... 10,434,070 9,041,059 8,436,650 6,615,884 5,364,377
Allowance for losses on loans....................... 166,853 156,388 154,131 141,999 114,130
Investment securities............................... 2,956,234 3,573,054 3,592,482 3,854,767 3,370,321
Deposits............................................ 11,490,262 11,074,722 10,702,569 9,879,780 8,714,306
Short-term borrowings............................... 714,146 838,283 699,838 300,414 343,452
Long-term debt(3)
Parent company.................................... 373,459 214,758 114,790 114,729 74,292
Subsidiary banks.................................. 1,035,257 811,819 693,002 463,055 202,847
Total shareholders' equity.......................... 1,352,874 1,213,162 1,008,594 935,730 670,267
Average assets...................................... 15,274,782 13,661,748 13,105,179 11,565,505 9,475,049
Average shareholders' equity........................ 1,283,575 1,119,232 1,042,990 813,140 623,869
Average shares outstanding (in thousands)
Primary........................................... 64,987 60,385 59,587 43,192 35,463
Fully Diluted..................................... 69,518 64,995 59,929 47,422 38,307
PROFITABILITY AND CAPITAL RATIOS
Return on average assets............................ 0.88% 1.26% 0.77% 0.99% 0.83%
Return on average common equity..................... 10.61 16.16 9.76 14.92 13.15
Net interest income (taxable-equivalent)/average
earning assets(4)................................. 4.41 4.38 4.31 4.29 4.26
Loans/deposits...................................... 90.81 81.64 78.83 66.96 61.56
Common and preferred dividend payout ratio.......... 50.64 32.74 40.99 28.34 32.95
Equity/assets (period end).......................... 8.89 8.43 7.51 7.89 6.58
Average shareholders' equity/average total assets... 8.40 8.19 7.96 7.03 6.58
Leverage ratio...................................... 9.61 8.08 7.53 7.62 6.36
Tier 1 capital/risk-weighted assets................. 15.29 13.39 12.75 14.07 11.70
Total capital/risk-weighted assets.................. 18.32 16.68 14.97 16.51 13.64
</TABLE>
10
<PAGE> 18
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,(1)
-------------------------------------------------------------------
1996 1995 1994 1993 1992
----------- ----------- ----------- ----------- -----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
ASSET QUALITY RATIOS(6)
Allowance/period end loans.......................... 1.86 1.92 1.98 2.27 2.20
Nonperforming loans/total loans..................... 0.74 0.56 0.44 0.65 1.16
Allowance/nonperforming loans....................... 253 344 444 346 189
Nonperforming assets/loans and foreclosed
properties........................................ 0.92 0.67 0.58 0.96 1.83
Provision/average loans............................. 0.66 0.34 0.14 0.37 0.74
Net charge-offs/average loans....................... 0.60 0.34 0.09 0.27 0.52
</TABLE>
- ---------------
(1) Reference is made to "Basis of Presentation" in Note 1 to UPC's consolidated
financial statements contained in the 1996 Annual Report to Shareholders.
(2) Share and per share amounts have been retroactively restated for significant
acquisitions accounted for as poolings of interests.
(3) Long-term debt includes Medium-Term Bank Notes, Federal Home Loan Bank
(FHLB) advances, subordinated notes and debentures, obligations under
capital leases, mortgage indebtedness, Old Capital Securities, and notes
payable with maturities greater than one year.
(4) Average balances and calculations do not include the impact of the net
unrealized gain or loss on available for sale securities.
(5) Leader Financial Corporation was organized as a holding company on March 18,
1993 in connection with the conversion of its principal subsidiary, Leader
Federal Bank for Savings, from a federal mutual savings bank to a
federally-chartered capital stock savings bank (See Note 2 to UPC's
consolidated financial statements contained in the 1996 Annual Report to
Shareholders). Accordingly, earnings per share for the year ended December
31, 1992 is calculated using only UPC's historical net earnings and the
calculation of earnings per share for the year ended December 31, 1993 is
based on UPC's historical net earnings for 1993 plus Leader's fourth quarter
net earnings, since the stock conversion occurred on September 30, 1993.
(6) FHA/VA government-insured/guaranteed loans have been excluded, since they
represent minimal credit risk to UPC.
11
<PAGE> 19
RISK FACTORS
In addition to the other information in this Prospectus, the following
factors should be considered carefully in evaluating the New Capital Securities
before deciding whether or not to accept the Exchange Offer.
RANKING OF SUBORDINATE OBLIGATIONS UNDER THE GUARANTEE AND THE SUBORDINATED DEBT
SECURITIES
The obligations of UPC under both the Guarantee and the Subordinated Debt
Securities are subordinate and junior in right of payment to all present and
future Senior Indebtedness (as defined herein) of UPC. No payment of principal
of (including redemption payments, if any) or premium, if any, or interest on
the Subordinated Debt Securities may be made if (i) any Senior Indebtedness of
UPC is not paid when due and any applicable grace period with respect to such
default has ended with such default not having been cured or waived or ceasing
to exist or (ii) the maturity of any Senior Indebtedness of UPC has been
accelerated because of a default. As of December 31, 1996, UPC had approximately
$174.5 million of Senior Indebtedness outstanding. There are no terms in the
Capital Securities, the Subordinated Debt Securities or the Guarantee that limit
the ability of UPC or any of its subsidiaries to incur additional indebtedness,
including indebtedness that ranks senior to the Subordinated Debt Securities and
the Guarantee. See "Description of the Guarantee -- Status of the Guarantee" and
"Description of the Subordinated Debt Securities."
Because UPC is a bank holding company, the Subordinated Debt Securities and
the Guarantee are effectively subordinated to all existing and future
liabilities of UPC's subsidiaries, except to the extent that UPC is a creditor
of the subsidiaries recognized as such. There are also various legal limitations
on the extent to which UPC's Banking Subsidiaries may extend credit, pay
dividends or otherwise supply funds to UPC or various of its affiliates.
GUARANTEE COVERS DISTRIBUTIONS AND OTHER PAYMENTS ONLY TO THE EXTENT THE TRUST
HAS AVAILABLE FUNDS: RELATED REMEDIES
The terms of the Guarantee are those set forth in an indenture and those
made part of such Guarantee by the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), under which The First National Bank of Chicago currently
serves as trustee (the "Guarantee Trustee"). The Guarantee Trustee holds the
Guarantee for the benefit of the holders of the Capital Securities.
The Guarantee guarantees to the holders of the Capital Securities the
following payments, to the extent not paid by the Trust: (i) any accrued and
unpaid Distributions required to be paid on the Capital Securities, to the
extent the Trust has funds available therefor, (ii) the Redemption Price (as
defined herein), including all accrued and unpaid Distributions with respect to
Capital Securities called for redemption by the Trust, to the extent the Trust
has funds available therefor, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection
with the distribution of Subordinated Debt Securities to the holders of Capital
Securities upon a redemption of all the Capital Securities), the lesser of (a)
the aggregate of the liquidation amount and all accrued and unpaid Distributions
on the Capital Securities to the date of the payment, to the extent the Trust
has funds available therefor or (b) the amount of assets of the Trust remaining
available for distribution to holders of the Capital Securities in liquidation
of the Trust. The Guarantee is subordinated as described under "-- Ranking of
Subordinate Obligations under the Guarantee and the Subordinated Debt
Securities." The holders of a majority in liquidation amount of the Capital
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee or to direct the
exercise of any trust or power conferred upon the Guarantee Trustee under the
Guarantee. A holder of record of the Capital Securities may institute a legal
proceeding directly against UPC to enforce the Guarantee Trustee's rights
without first instituting any legal proceeding against the Trust, the Guarantee
Trustee or any other person or entity. Notwithstanding the foregoing, any holder
of record of Capital Securities may, after such holder's written request to the
Guarantee Trustee to pursue such trustee's remedies under the Guarantee and any
failure by such trustee to do so, institute a legal proceeding directly against
UPC, without first instituting a legal proceeding against the Trust, the
Guarantee Trustee or any other person or entity, for enforcement of payment to
such holder of Distributions on the Capital Securities of such holder, on or
after the respective due dates specified in the Capital Securities. If UPC were
to default on its obligation to pay amounts payable on the Subordinated
12
<PAGE> 20
Debt Securities, the Trust would lack available funds for the payment of
Distributions or amounts payable on redemption of the Capital Securities, and,
in such event, holders of the Capital Securities would not be able to rely upon
the Guarantee for payment of such amounts. Instead, each holder of Capital
Securities would rely on the enforcement (i) by the Institutional Trustee (as
defined herein) of its rights as registered holder of the Subordinated Debt
Securities against UPC pursuant to the terms of the Subordinated Debt Securities
or (ii) by such holder of Capital Securities of its right against UPC to enforce
payments of principal (and premium, if any) and interest on Subordinated Debt
Securities having an aggregate principal amount equal to the aggregate
liquidation amount of Capital Securities of such holder. See "Description of the
Capital Securities," "Description of the Guarantee" and "Description of the
Subordinated Debt Securities." The Declaration provides that each holder of
Capital Securities, by acceptance thereof, agrees to the provisions of the
Guarantee, including the subordination provisions thereof, and the Indenture
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Declaration Event of Default (as defined herein) with respect to the
Trust occurs and is continuing, then the holders of Capital Securities issued by
the Trust would, except as provided below, rely on the enforcement by the
Institutional Trustee of its rights as holder of the Subordinated Debt
Securities issued to the Trust against UPC. The holders of a majority in
liquidation amount of the Capital Securities issued by the Trust will have the
right to direct the time, method, and place of conducting any proceeding for any
remedy available to the Institutional Trustee with respect to the Capital
Securities or to direct the exercise of any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee to exercise the remedies available to it as a holder of
the Subordinated Debt Securities. If the Institutional Trustee fails to enforce
its rights under the Subordinated Debt Securities after the holders of a
majority in liquidation amount of the Capital Securities have so directed the
Institutional Trustee, to the fullest extent permitted by law, a holder of
record of the Capital Securities may institute a legal proceeding directly
against UPC to enforce the rights of the Institutional Trustee under the
Subordinated Debt Securities, without first instituting any legal proceeding
against the Institutional Trustee or any other person.
Notwithstanding the foregoing, if a Declaration Event of Default with
respect to the Trust has occurred and is continuing and such event is
attributable to the failure of UPC to pay interest or principal (or premium, if
any) on the Subordinated Debt Securities on the respective dates such interest
or principal (or premium, if any) is due and payable (or in the case of
redemption, on the redemption date), then a holder of record of Capital
Securities may institute directly against UPC a proceeding for enforcement of
payment, on or after the respective due dates specified in the Subordinated Debt
Securities, to such holder directly of the principal of (or premium, if any) or
interest on Subordinated Debt Securities having an aggregate principal amount
equal to the aggregate liquidation amount of the Capital Securities of such
holder (a "Direct Action"). In connection with such Direct Action, UPC will be
subrogated to the rights of such holder of Capital Securities under the
Declaration to the extent of any payment made by UPC to such holder of Capital
Securities in such Direct Action; provided, however, that no such subrogation
right may be exercised so long as a Declaration Event of Default has occurred
and is continuing. The holders of Capital Securities will not be able to
exercise directly any other remedy available to the holders of the Subordinated
Debt Securities.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES
UPC has the right under the Indenture to defer payments of interest on the
Subordinated Debt Securities by extending the interest payment period at any
time, and from time to time, subject to certain conditions, for Extension
Periods, each up to 10 consecutive semiannual periods. During each such
Extension Period, semiannual Distributions on the Capital Securities would
likewise be deferred (but would continue to accrue, despite such deferral, with
interest thereon compounded semiannually to the fullest extent permitted by
law). In the event that UPC exercises this right to defer interest payments on
the Subordinated Debt Securities, then during any Extension Period (a) UPC shall
not declare or pay dividends on, or make a distribution with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to, any
of its 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 UPC of its obligations under any employee benefit plans,
(ii) as a result of a
13
<PAGE> 21
reclassification of UPC's capital stock or rights to acquire such capital stock
or the exchange or conversion of one class or series of UPC's capital stock or
rights to acquire such capital stock for another class or series of UPC's
capital stock or rights to acquire such capital stock, (iii) the purchase of
fractional interests in shares of UPC'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 UPC's capital stock or
rights to acquire such capital stock with UPC's capital stock or rights to
acquire such capital stock or (v) any declaration of a dividend in connection
with the implementation of UPC's Shareholder Rights Plan, or the redemption or
repurchase of any rights pursuant thereto), or make guarantee payments with
respect to the foregoing and (b) UPC shall not make any payment of interest,
principal or premium if any, on or repay, repurchase or redeem any debt
securities issued by UPC that rank pari passu with or junior to the Subordinated
Debt Securities. Prior to the termination of any such Extension Period, UPC may
further extend the interest payment period; provided, however, that each such
Extension Period, together with all such previous and further extensions
thereof, may not exceed 10 consecutive semiannual periods or extend beyond the
maturity of the Subordinated Debt Securities. Upon the termination of any
Extension Period and the payment of all amounts then due, UPC may commence a new
Extension Period, subject to the terms set forth herein. See "Description of the
Capital Securities" and "Description of the Subordinated Debt Securities."
During each Extension Period, if any, each holder of Capital Securities
will continue to accrue income (as original issue discount ("OID")) in respect
of the deferred interest (see "United States Federal Income Taxation") allocable
to its Capital Securities for United States federal income tax purposes, which
will be allocated but not distributed. In such event, each holder of Capital
Securities will recognize income for United States federal income tax purposes
in advance of the receipt of cash, and will not receive cash related to such
income from the Trust if such holder disposes of its Capital Securities prior to
the record date for payment of such deferred interest. See "United States
Federal Income Taxation."
UPC has no current intention of exercising its right to defer payments of
interest on the Subordinated Debt Securities. However, should UPC determine to
exercise such right in the future, the market price of the Capital Securities is
likely to be affected. A holder that disposes of its Capital Securities during
an Extension Period, therefore, might not receive the same return on its
investment as a holder that continues to hold its Capital Securities. In
addition, as a result of the existence of UPC's right to defer interest
payments, the market price of the Capital Securities (which represent undivided
beneficial interests in the Subordinated Debt Securities) may be more volatile
than other securities on which OID accrues that do not have such rights.
PROPOSED TAX LEGISLATION
On February 6, 1997, President Clinton proposed certain tax law changes
that would, among other things, generally deny corporate issuers a deduction for
interest in respect of certain debt obligations (the "Proposed Legislation") if
such debt obligations have a maximum term in excess of 15 years and are not
shown as indebtedness on the issuer's applicable consolidated balance sheet. As
currently drafted, the Proposed Legislation would be effective generally for
instruments issued on or after the date of first Congressional committee action.
Under current law, UPC will be able to deduct interest on the Subordinated Debt
Securities and, based upon the effective date of the Proposed Legislation as it
is currently drafted, it is expected that if the Proposed legislation were
enacted, such legislation would not apply retroactively to the Subordinated Debt
Securities. However, if the Proposed Legislation is enacted with retroactive
effect with respect to the Subordinated Debt Securities, UPC would not be
entitled to an interest deduction with respect to the Subordinated Debt
Securities. There can be no assurance, however, that the Proposed Legislation,
if enacted, will not apply retroactively to the Subordinated Debt Securities or
that other legislation enacted after the date hereof will not otherwise
adversely affect the ability of UPC to deduct the interest payable on the
Subordinated Debt Securities. Accordingly, there can be no assurance that a Tax
Event will not occur which would permit UPC to cause a redemption of the Capital
Securities. See "-- Redemption; Distribution" and "Description of the
Subordinated Debt Securities -- Proposed Tax Legislation."
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<PAGE> 22
EXCHANGE OF CAPITAL SECURITIES FOR SUBORDINATED DEBT SECURITIES; TAX EVENT
REDEMPTION
UPC, as the holder of all the outstanding Common Securities of the Trust,
has the right at any time to dissolve the Trust (including but not limited to
the occurrence of a Tax Event) and, after satisfaction of liabilities to
creditors of the Trust (to the extent not satisfied by UPC), cause the
Subordinated Debt Securities to be distributed to the holders of the Trust
Securities on a pro rata basis in accordance with the aggregate stated
liquidation amount thereof, in liquidation of the Trust. See "Description of the
Capital Securities -- Liquidation Distribution Upon Dissolution." Upon the
occurrence of a Tax Event, in certain circumstances described herein, UPC will
have the right to redeem the Subordinated Debt Securities, in whole or in part,
in which event the Trust will redeem the Trust Securities on a pro rata basis to
the same extent as such Subordinated Debt Securities are redeemed by UPC. See
"Description of the Capital Securities -- Tax Event Redemption." The exercise of
such rights is subject to UPC having received prior approval to do so from the
Federal Reserve if then required under applicable guidelines or policies of the
Federal Reserve.
Under current United States federal income tax law, a distribution of
Subordinated Debt Securities upon the dissolution of the Trust would not be a
taxable event to holders of the Capital Securities. Upon the occurrence of a Tax
Event, however, a dissolution of the Trust in which holders of the Capital
Securities receive cash would be a taxable event to such holders. See "United
States Federal Income Taxation -- US Holders -- Receipt of Subordinated Debt
Securities or Cash upon Liquidation of Trust."
There can be no assurance as to the market prices for the Capital
Securities or the Subordinated Debt Securities that may be distributed in
exchange for Capital Securities if a dissolution or liquidation of the Trust
were to occur. Accordingly, the Capital Securities that an investor may purchase
in the secondary market or otherwise, or the Subordinated Debt Securities that a
holder of Capital Securities may receive on dissolution and liquidation of the
Trust, may trade at a discount to the price paid to purchase the Capital
Securities. Because the ability of the Trust to pay amounts due on the Capital
Securities is wholly dependent upon UPC's making payments on the Subordinated
Debt Securities as and when required, and because holders of Capital Securities
may receive Subordinated Debt Securities upon liquidation of the Trust,
prospective purchasers of Capital Securities are also making an investment
decision with regard to the Subordinated Debt Securities and should carefully
review all the information regarding the Subordinated Debt Securities contained
herein or incorporated herein by reference, and evaluate the credit risk of UPC.
See "Description of the Capital Securities" and "Description of the Subordinated
Debt Securities."
CONSEQUENCES OF HIGHLY LEVERAGED TRANSACTION
The Indenture does not contain any provisions that afford holders of the
Subordinated Debt Securities protection in the event of a highly leveraged
transaction, including a change of control or other similar transactions
involving UPC that may adversely affect such holders. See "Description of the
Subordinated Debt Securities."
LIMITED VOTING RIGHTS
Holders of Capital Securities will have limited voting rights and will not
be entitled to vote to appoint, remove or replace any Union Planters Trustee (as
defined herein), or to increase or decrease the number of Union Planters
Trustees. Such voting rights with respect to the Union Planters Trustees are
vested exclusively in the holder of the Common Securities, which will be UPC.
See "Description of the Capital Securities."
TRADING PRICE
The Capital Securities are expected to trade at a price per Capital
Security plus accrued and unpaid Distributions, if any to the date of
settlement. Because the Capital Securities pay Distributions at a fixed rate
based upon the fixed interest rate payable on the Subordinated Debt Securities,
the trading price of the Capital Securities may decline if interest rates rise.
15
<PAGE> 23
CONSEQUENCES OF A FAILURE TO EXCHANGE OLD CAPITAL SECURITIES
The Old Capital Securities have not been registered under the Securities
Act or any state securities laws and therefore may not be offered, sold or
otherwise transferred except in compliance with the registration requirements of
the Securities Act and any other applicable securities laws, or pursuant to an
exemption therefrom, or in a transaction not subject thereto, and in each case
in compliance with certain other conditions and restrictions. Old Capital
Securities which remain outstanding after consummation of the Exchange Offer
will continue to bear a legend reflecting such restrictions on transfer. In
addition, upon consummation of the Exchange Offer, holders of Old Capital
Securities which remain outstanding will not be entitled to any rights to have
such Old Capital Securities registered under the Securities Act or to any
similar rights under the Registration Rights Agreement. UPC and the Trust do not
intend to register under the Securities Act any Old Capital Securities which
remain outstanding after consummation of the Exchange Offer.
To the extent that Old Capital Securities are tendered and accepted in the
Exchange Offer, any trading market for Old Capital Securities which remain
outstanding after the Exchange Offer could be adversely affected.
The New Capital Securities and any Old Capital Securities which remain
outstanding after consummation of the Exchange Offer will constitute a single
series of Capital Securities under the Declaration and, accordingly, will vote
together as a single class for purposes of determining whether holders of the
requisite percentage in outstanding Liquidation Amount thereof have taken
certain actions or exercised certain rights under the Declaration.
The Old Capital Securities provide that, if the Exchange Offer is not
consummated within 180 days of the original issuance of the Old Capital
Securities, the Distribution rate borne by the Old Capital Securities will
increase by 0.25% per annum commencing on the 181st day after the original
issuance of the Old Capital Securities, until the Exchange Offer is consummated.
Following consummation of the Exchange Offer, the Old Capital Securities will
not be entitled to any increase in the Distribution rate thereon. The New
Capital Securities will not be entitled to any such increase rate thereon.
ABSENCE OF PUBLIC MARKET
The Old Capital Securities were issued to, and UPC believes are currently
owned by, a relatively small number of beneficial owners. The Old Capital
Securities have not been registered under the Securities Act and will continue
to be subject to restrictions on transferability to the extent that they are not
exchanged for the New Capital Securities. Although the New Capital Securities
will generally be permitted to be resold or otherwise transferred by the holders
(who are not affiliates of UPC or the Trust) without compliance with the
registration requirements under the Securities Act, they will constitute a new
issue of securities with no established trading market. Capital Securities may
be transferred by the holders thereof only in blocks having a Liquidation Amount
of not less than $100,000 (100 Capital Securities). Accordingly, no assurance
can be given that an active public or other market will develop for the New
Capital Securities or the Old Capital Securities. If an active public market
does not develop, the market price and liquidity of the New Capital Securities
may be adversely affected.
If a public trading market develops for the New Capital Securities, future
trading prices of such securities will depend on many factors, including, among
other things, prevailing interest rates, results of operations and the market
for similar securities. Depending on prevailing interest rates, the market for
similar securities and other factors, including the financial condition of UPC,
the New Capital Securities may trade at a discount. UPC and the Trust intend to
apply for listing of the Capital Securities issued in the Exchange Offer as debt
securities on a securities exchange or for quotation through the National
Association of Securities Dealers Automated Quotation System. If the
Subordinated Debt Securities are distributed to the holders of the Capital
Securities, and the Capital Securities are then listed on such exchange or for
such quotation, UPC will use its best efforts to have the Subordinated Debt
Securities listed on such exchange or for such quotation as the Capital
Securities are then listed.
Notwithstanding the registration of the New Capital Securities in the
Exchange Offer, holders who are "affiliates" (as defined under Rule 405 of the
Securities Act) of UPC or the Trust may publicly offer for sale or
16
<PAGE> 24
resell the New Capital Securities only in compliance with the provisions of Rule
144 under the Securities Act or any other available exemptions under the
Securities Act.
Each broker-dealer that receives New Capital Securities for its own account
in exchange for Old Capital Securities, where such Old Capital Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Capital Securities. See "Plan of
Distribution."
EXCHANGE OFFER PROCEDURES
Issuance of the New Capital Securities in exchange for Old Capital
Securities pursuant to the Exchange Offer will be made only after a timely
receipt by the Exchange Agent of such Old Capital Securities, a properly
completed and duly executed Letter of Transmittal and all other required
documents. Therefore, holders of the Old Capital Securities desiring to tender
such Old Capital Securities in exchange for New Capital Securities should allow
sufficient time to ensure timely delivery. Neither UPC, the Trust nor the
Exchange Agent is under any duty to give notification of defects or
irregularities with respect to the tenders of Old Capital Securities for
exchange.
17
<PAGE> 25
CAPITALIZATION
The following table sets forth the consolidated capitalization of UPC and
its subsidiaries as of December 31, 1996. The following data should be read in
conjunction with the consolidated financial statements and notes thereto of UPC
and its subsidiaries incorporated herein by reference. See "Incorporation of
Certain Documents by Reference." The issuance of the New Capital Securities in
the Exchange Offer will have no effect on the capitalization of UPC.
<TABLE>
<CAPTION>
DECEMBER 31, 1996
ACTUAL
----------------------
(DOLLARS IN THOUSANDS)
<S> <C>
Parent Company Long-Term Debt
6.25% Subordinated Notes due 2003......................... $ 74,644
6 3/4% Subordinated Notes due 2005........................ 99,477
Other..................................................... 400
----------
Total Parent Company Long-Term Debt............... 174,521
Subsidiary Banks' Long-Term Debt
Federal Home Loan Bank advances........................... 889,985
Medium-Term Notes......................................... 135,000
Other..................................................... 10,272
----------
Total Subsidiary Banks' Long-Term Debt............ 1,035,257
----------
Corporation-Obligated Mandatorily Redeemable Capital
Pass-through
Securities of Subsidiary Trust holding solely a
Corporation-Guaranteed Related Subordinated Note.......... 198,938
----------
Total Long-Term Debt.............................. 1,408,716
----------
Shareholders' Equity
Series E, 8% Cumulative, Convertible Preferred Stock
(3,352,347 shares issued and outstanding)(2)........... 83,809
Common Stock, $5 par value; 100,000,000 shares authorized;
64,927,320 shares issued............................... 324,637
Additional paid-in capital................................ 177,372
Retained earnings......................................... 752,963
Unearned compensation..................................... (10,499)
Unrealized gain on available for sale securities, net of
taxes.................................................. 24,592
----------
Total shareholders' equity........................ 1,352,874
----------
Total long-term debt and shareholders' equity..... $2,761,590
==========
Capital Ratios
Equity/Assets............................................. 8.89%
Leverage.................................................. 9.61
Tier 1 risk-based capital................................. 15.29
Total risk-based capital.................................. 18.32
</TABLE>
- ---------------
(1) The Corporation-Obligated Mandatorily Redeemable Capital Pass-through
Securities of Subsidiary Trust holding solely a Corporation-Guaranteed
Related Subordinated Note reflects the Capital Securities. As described
herein, the sole asset of the Trust is $206,186,000 of the 8.20% Junior
Subordinated Deferrable Interest Debentures due 2026 of UPC, which will
mature on December 15, 2026. UPC owns all of the Common Securities of the
Trust. It is anticipated that the Trust will not be subject to the reporting
requirements under the Securities Exchange Act of 1934.
(2) The Series E Preferred Stock has a stated liquidation value of $25 per share
plus all dividends accrued and unpaid to the date of liquidation, and may be
redeemed by UPC with the prior approval of the Federal Reserve Board after
March 31, 1997, at $25 per share plus all dividends accrued and unpaid to
the date fixed for the redemption. Each share is convertible at the option
of the holder into 1.25 shares (4,190,434 shares at December 31, 1996) of
UPC Common Stock prior to redemption.
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<PAGE> 26
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges of
UPC for the respective periods indicated.
<TABLE>
<CAPTION>
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Excluding interest on deposits.......................... 2.39X 3.24X 2.54X 3.77X 3.27X
Including interest on deposits.......................... 1.33X 1.46X 1.33X 1.37X 1.27X
</TABLE>
For purposes of computing these ratios, earnings represent income before
income taxes and cumulative effect of changes in accounting principles and fixed
charges (excluding capitalized interest). Fixed charges, excluding interest on
deposits, include interest (other than on deposits but including capitalized
interest) and the portion deemed representative of the interest factor of rents.
Fixed charges, including interest on deposits, include all interest (including
capitalized interest) and the portion deemed representative of the interest
factor of rents.
ACCOUNTING AND REGULATORY TREATMENT
The financial statements of the Trust will be consolidated into UPC's
consolidated financial statements, with the Capital Securities being included in
long-term debt on the consolidated balance sheet and shown as a separate line
item in the long-term debt footnote as "Corporation-Obligated Mandatorily
Redeemable Capital Pass-Through Securities of Subsidiary Trust holding Solely a
Corporation Guaranteed Related Subordinated Note." Distributions with respect to
the Capital Securities will be classified as interest expense on long-term debt
in UPC's consolidated statement of earnings. The sole asset of the Trust is, and
will continue to be, the Subordinated Debt Securities issued by UPC to the
Trust. UPC has included and agrees that future reports of UPC filed under
Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act") will: (a)
present the Capital Securities issued by the Trust in the consolidated balance
sheet of UPC as long-term debt with disclosure in the footnotes under a line
item entitled "Corporation-Obligated Mandatorily Redeemable Capital Pass-Through
Securities of Subsidiary Trust holding Solely a Corporation Guaranteed Related
Subordinated Note"; (b) include in a footnote to the financial statements of UPC
disclosure that the sole assets of the Trust are the Subordinated Debt
Securities (stating the principal amount, interest rate and maturity date); and
(c) include in an audited footnote to the financial statements of UPC disclosure
that (i) the Trust is wholly-owned by UPC; (ii) the sole assets of the Trust are
the Subordinated Debt Securities (stating the principal amount, interest rate
and maturity date); and (iii) the Capital Securities Guarantee relating to the
Capital Securities of the Trust, when taken together with UPC's obligations
under the Subordinated Debt Securities, the Indenture and the Declaration will
provide a full and unconditional guarantee by UPC, on a subordinated basis, of
payments due on such Capital Securities.
Furthermore, in accordance with SEC Staff Accounting Bulletin No. 53, the
Trust is not required to disclose separate financial statements because it is
wholly-owned, has no independent operations, and has issued securities that
contain a full and unconditional guarantee of its parent, UPC.
UPC, for bank regulatory accounting and reporting purposes, will report the
Capital Securities in UPC's regulatory financial statements as a minority
interest in a consolidated subsidiary, and will classify the Distributions paid
on the Capital Securities as income/expense of minority interest of a
consolidated subsidiary. Additionally, UPC, based on guidance received from
applicable regulatory agencies, will include the carrying value of the Capital
Securities in UPC's computations of Tier 1 regulatory capital.
USE OF PROCEEDS
Neither UPC nor the Trust will receive any cash proceeds from the issuance
of the New Capital Securities offered hereby. In consideration for issuing the
New Capital Securities in exchange for Old Capital Securities as described in
this Prospectus, the Trust will receive Old Capital Securities in like
Liquidation Amount. The Old Capital Securities surrendered in exchange for the
New Capital Securities will be retired and cancelled.
The net proceeds to the Trust from the offering of the Old Capital
Securities was approximately $199 million (before deducting expenses associated
with the offering). All of the proceeds from the sale of the Old
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<PAGE> 27
Capital Securities were invested by the Trust in the Old Junior Subordinated
Debt Securities. UPC's net proceeds from the sale of the Old Junior Subordinated
Debt Securities to the Trust was added to its general corporate funds and were
and may be used for general corporate purposes, including, but not limited to,
working capital, capital expenditures, investments in or loans to subsidiaries,
acquisitions of other financial institutions and entities engaged in activities
permissible for banks or bank holding companies, refinancing of debt, including
outstanding commercial paper and other short-term indebtedness, and satisfaction
of other obligations of UPC and its subsidiaries. Pending such application by
UPC, such net proceeds may be temporarily invested in short-term
interest-bearing securities.
THE TRUST
The Trust is a statutory business trust created under Delaware law pursuant
to (i) a separate declaration of trust, (the "Original Declaration") executed by
UPC, as sponsor for the Trust (the "Sponsor"), and the Union Planters Trustees
(as defined herein) for the Trust and (ii) the filing of a certificate of trust
for the Trust with the Delaware Secretary of State on December 4, 1996. The
Original Declaration was amended and restated in its entirety pursuant to an
Amended and Restated Declaration of Trust dated as of December 12, 1996 (the
"Declaration") executed by the Sponsor and the Union Planters Trustees (as
defined below). The Declaration has been qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). The Trust exists for the
exclusive purposes of (i) issuing the Trust Securities representing undivided
beneficial interests in the assets of the Trust, (ii) investing the gross
proceeds of such Trust Securities in the Subordinated Debt Securities, and (iii)
engaging in only those other activities necessary or incidental thereof. All of
the Common Securities of the Trust are and will be directly or indirectly owned
by UPC. The Common Securities rank pari passu, and payments will be made thereon
pro rata, with the Capital Securities except that upon an event of default under
the Declaration in respect of the Trust, the rights of the holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Capital Securities. UPC acquired Common Securities in an aggregate
liquidation amount equal to 3% of the total capital of the Trust. The Trust has
a term of approximately 55 years, but may earlier terminate as provided in the
Declaration.
The Trust's business and affairs are conducted by the trustees (the "Union
Planters Trustee") appointed by UPC, as the holder of all of the Common
Securities. The holder of the Common Securities is entitled to appoint, remove
or replace any of, or increase or reduce the number of, the Union Planters
Trustees. The duties and obligations of the Union Planters Trustees are governed
by the Declaration. A majority of the Union Planters Trustees (the "Regular
Trustees") are employees or officers of, or otherwise affiliated with, UPC. One
Union Planters Trustee must be a financial institution that is unaffiliated with
UPC and which is eligible and act as property trustee and as indenture trustee
pursuant to the terms set forth herein (the "Institutional Trustee").
Pursuant to the Declaration, the number of Union Planters Trustees is five.
Three of the trustees are Regular Trustees. The fourth trustee is the
Institutional Trustee. The First National Bank of Chicago, a national banking
association, is the Institutional Trustee until removed or replaced by the
holder of the Common Securities. The First National Bank of Chicago also serves
as trustee under the Guarantee. The fifth trustee is required to be an entity
that maintains its principal place of business in the State of Delaware (the
"Delaware Trustee"). First Chicago Delaware Inc., an affiliate of the
Institutional Trustee, is the Delaware Trustee. See "Description of the Capital
Securities -- Voting Rights" herein. The Institutional Trustee holds title to
the Subordinated Debt Securities for the benefit of the holders of the Trust
Securities, and the Institutional Trustee has the power to exercise all rights,
powers and privileges under the Indenture as the holder of the Subordinated Debt
Securities. In addition, the Institutional Trustee maintains exclusive control
of a separate, segregated, non-interest bearing trust account (the "Property
Account") to hold all payments made in respect of the Subordinated Debt
Securities for the benefit of the holders of the Trust Securities. The
Institutional Trustee will make payments of Distributions and payments on
liquidation, redemption and otherwise to the holders of record of the Trust
Securities issued by the Trust out of funds from the Property Account. UPC, as
holder of all the Common Securities of the Trust, has the right, subject to the
Trust Indenture Act with respect to the Institutional Trustee and Delaware law
with respect to the Delaware Trustee, to appoint, remove or replace any Union
Planters Trustee and to increase or decrease the number of Union Planters
Trustees. UPC will pay all fees and expenses related to the Trust and the
offering and sale of the Trust Securities. See "Description of the Subordinated
Debt Securities -- Miscellane-
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ous." The rights of the holders of the Capital Securities, including economic
rights, rights to information and voting rights, are set forth in the
Declaration with respect to the Trust, the Delaware Business Trust Act, as
amended (the "Trust Act"), and the Trust Indenture Act. See "Description of the
Capital Securities." The principal place of business of the Trust is c/o Union
Planters Corporation, 7130 Goodlett Farms Parkway, Memphis, Tennessee 38018,
Attention: Secretary.
UNION PLANTERS CORPORATION
UPC is a multi-state bank holding company headquartered in Memphis,
Tennessee, whose primary business is banking. At December 31, 1996, UPC had
total consolidated assets of approximately $15.2 billion, total consolidated
loans of approximately $10.4 billion, total consolidated deposits of
approximately $11.5 billion and total consolidated shareholders' equity of
approximately $1.4 billion. UPC's the largest independent bank holding company
headquartered in Tennessee and is one of the fifty largest bank holding
companies headquartered in the United States, as measured by total consolidated
assets.
UPC conducts its business activities through its principal bank subsidiary,
the $6.0-billion-asset Union Planters National Bank ("UPNB"), founded in 1869
and headquartered in Memphis, Tennessee, and through 36 other bank subsidiaries
in Tennessee, Mississippi, Missouri, Arkansas, Louisiana, Alabama and Kentucky
(collectively, the "Banking Subsidiaries"). Through its Banking Subsidiaries,
UPC provides a diversified range of financial services in the communities in
which it operates, including traditional banking services; consumer, commercial
and corporate lending; retail banking; mortgage origination and servicing;
investment management and trust services; the issuance and servicing of credit
and debit cards; the origination, packaging and securitization of the
government-guaranteed portions of Small Business Administration loans; the
purchase of delinquent Federal Housing Administration and Department of Veterans
Affairs ("FHA/VA") government-insured/guaranteed loans from the Government
National Mortgage Association ("GNMA") and other parties; full service and
discount brokerage services; and the sale of annuities and certain bank-eligible
insurance products.
Through its Banking Subsidiaries, UPC operates approximately 438 banking
offices and 544 ATMs. UPC's assets at December 31, 1996 are allocable by state
to its banking offices approximately as follows: $10.2 billion in Tennessee,
$2.3 billion in Mississippi, $1.3 billion in Missouri, $665 million in Arkansas,
$579 million in Louisiana, $451 million in Alabama and $118 million in Kentucky.
Acquisitions have been, and are expected to continue to be, an important
part of the expansion of UPC's business. UPC completed four acquisitions in
1992, twelve in 1993, thirteen in 1994, three in 1995, and seven in 1996 adding
approximately $1.6 billion in total assets in 1992, $1.7 billion in 1993, $3.8
billion in 1994, $1.3 billion in 1995 and $4.2 billion in 1996. For a discussion
of UPC's acquisition program and the philosophy of UPC's management on that
subject, see the caption "Acquisitions" (on page 6) and Note 2 to UPC's audited
consolidated financial statements for the years ended December 31, 1996, 1995
and 1994 (on pages 45 and 46) contained in UPC's Annual Report to Shareholders
("UPC's Annual Report") which is Exhibit 13 to UPC's Annual Report on Form 10-K
for the year ended December 31, 1996, which Exhibit 13 is incorporated by
reference herein to the extent indicated in said Form 10-K.
UPC expects to continue to take advantage of the consolidation of the
financial services industry by further developing its franchise through the
acquisition of financial institutions and entities engaged in businesses
permissible for bank holding companies and banks. Future acquisitions may entail
the payment by UPC of consideration in excess of the book value of the
underlying net assets acquired, may result in the issuance of additional shares
of UPC capital stock or the incurring of additional indebtedness by UPC, and
could have a dilutive effect on the earnings or book value per share of UPC
common stock. Moreover, significant charges against earnings are sometimes
required incidental to acquisitions. For a discussion of the impact of
acquisition related charges on UPC's earnings over the past few years, see the
caption "Noninterest Expense" (on page 11) and Table 1; Summary of Consolidated
Results (on page 23) of UPC's Annual Report.
UPC is a legal entity separate and distinct from UPNB and UPC's other
Banking Subsidiaries and affiliates. Because UPC is a holding company, its
rights and the rights of its creditors and shareholders, including the
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<PAGE> 29
holders of its Subordinated Debt Securities and the Guarantee, to participate in
the assets of any subsidiary upon its liquidation or recapitalization will be
subject to the prior claims of such subsidiary's creditors, except to the extent
that UPC may itself be a creditor having recognized claims against such
subsidiary, in which case it will share in such subsidiary's assets along with
other creditors.
There are various legal and regulatory limitations on the extent to which
UPC's Banking Subsidiaries may extend credit, pay dividends or otherwise supply
funds to UPC or any of its other subsidiaries. The approval of the Office of the
Comptroller of the Currency is required if total dividends declared by a
national bank in any calendar year should exceed net profits for that year
combined with its retained net profits for the preceding two years. Moreover,
banks may not pay dividends in excess of their undivided profits. In determining
whether and to what extent to pay dividends, each Banking Subsidiary must also
consider the effect of dividend payments on applicable risk-based capital and
leverage requirements as well as policy statements of the federal regulatory
agencies to the effect that, generally, banking organizations should pay
dividends out of current operating earnings. In addition there are numerous
governmental requirements and regulations which affect the activities of UPC and
its bank and non-bank subsidiaries. See the discussion in Part I, Item 1 of
UPC's Form 10-K for the year ended December 31, 1996 under the caption "Certain
Regulatory Considerations" and see also Note 12 to UPC's audited consolidated
financial statements for the years ended December 31, 1996, 1995 and 1994 (on
pages 56 and 57) contained in UPC's Annual Report.
UPC's corporate office is located at 7130 Goodlett Farms Parkway, Memphis,
Tennessee 38018, and its telephone number is (901) 580-6000. Additional
information concerning UPC is included in the documents incorporated by
reference into this Prospectus. See "Available Information" and "Incorporation
of Certain Documents by Reference."
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the sale of the Old Capital Securities, UPC and the
Trust entered into the Registration Rights Agreements with the Initial
Purchasers, pursuant to which UPC and the Trust agreed, among other things and
subject to certain conditions, to file and to use their reasonable efforts to
cause to become effective with the Commission a registration statement with
respect to the exchange of the Old Capital Securities for capital securities
with terms identical in all material respects to the terms of the Old Capital
Securities. A copy of the Registration Rights Agreement has been filed as an
Exhibit to the Registration Statement of which this Prospectus is a part.
This Exchange Offer is being made to satisfy the contractual obligations of
UPC and the Trust under the Registration Rights Agreement. The form and terms of
the New Capital Securities are the same as the form and terms of the Old Capital
Securities except that the New Capital Securities have been registered under the
Securities Act and therefore will not be subject to certain restrictions on
transfer applicable to the Old Capital Securities, and holders of New Capital
Securities will not be entitled to certain rights of holders of Old Capital
Securities under the Registration Rights Agreement which will terminate upon the
consummation of this Exchange Offer. In that regard, the Old Capital Securities
provide, among other things, that UPC and the Trust must file a registration
statement with the Commission by May 11, 1997 to register the New Capital
Securities to be exchanged for the Old Capital Securities; to use their best
efforts to cause such registration statement to be declared effective by June
10, 1997; and to consummate the Exchange Offer by July 10, 1997. Subject to
certain exceptions, should UPC fail to file the registration statement, cause it
to be declared effective or consummate the exchange offer within such time
periods, in each instance the distribution rate on the Old Capital Securities
would increase by 0.25% per annum beginning the next day after such missed date
and ending on the date the particular event occurred; provided, however, the
aggregate amount of these special payments could not exceed 0.50% per annum of
the Liquidation Amount of the Capital Securities. However, upon consummation of
the Exchange Offer, holders of Old Capital Securities will not be entitled to
any increase in the Distribution rate thereon or any further registration rights
under the Registration Rights Agreement, except under limited circumstances, and
the
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New Capital Securities, as noted earlier, will not have these rights. See "Risk
Factors -- Consequences of a Failure to Exchange Old Capital Securities" and
"Description of the Old Securities."
The Exchange Offer is not being made to, nor will UPC or the Trust accept
tenders for exchange from, holders of Old Capital Securities in any jurisdiction
in which the Exchange Offer or the acceptance thereof would not be in compliance
with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to
the Exchange Offer means any person in whose name the Old Capital Securities are
registered on the books of the Trust or any other person who has obtained a
properly completed bond power from the registered holder, or any person whose
Old Capital Securities are held of record by The Depository Trust Company who
desires to deliver such Old Capital Securities by book-entry transfer at The
Depository Trust Company.
Pursuant to the Exchange Offer, UPC will exchange as soon as practicable
after the date hereof, the Old Guarantee for the New Guarantee and all of the
Old Junior Subordinated Debt Securities, of which $206,186,000 aggregate
principal amount is outstanding, for like aggregate principal of the New Junior
Subordinated Debt Securities. The New Guarantee and New Junior Subordinated Debt
Securities have been registered under the Securities Act.
TERMS OF THE EXCHANGE
UPC and the Trust hereby offer, upon the terms and subject to the
conditions set forth in this Prospectus and in the accompanying Letter of
Transmittal, to exchange up to $200,000,000 aggregate Liquidation Amount of New
Capital Securities for a like aggregate Liquidation Amount of Old Capital
Securities properly tendered on or prior to the Expiration Date (as defined
below) and not properly withdrawn in accordance with the procedures described
below. The Trust will issue, promptly after the Expiration Date, an aggregate
Liquidation Amount of up to $200,000,000 of New Capital Securities in exchange
for a like principal amount of outstanding Old Capital Securities tendered and
accepted in connection with the Exchange Offer. Holders may tender their Old
Capital Securities in whole or in part in a Liquidation Amount of not less than
$100,000 or any integral multiple of $1,000 in excess thereof.
The Exchange Offer is not conditioned upon any minimum Liquidation Amount
of Old Capital Securities being tendered. As of the date of this Prospectus
$200,000,000 aggregate Liquidation Amount of the Old Capital Securities is
outstanding.
Holders of Old Capital Securities do not have any appraisal or dissenters'
rights in connection with the Exchange Offer. Old Capital Securities which are
not tendered or which are tendered but not accepted in connection with the
Exchange Offer will remain outstanding and will continue to be entitled to the
benefits of the Declaration, but will not be entitled to any further
registration rights under the Registration Rights Agreement, except under
limited circumstances. See "Risk Factors -- Consequences of a Failure to
Exchange Old Capital Securities" and "Description of the Old Securities."
If any tendered Old Capital Securities are not accepted for exchange
because of an invalid tender, the occurrence of certain other events set forth
herein or otherwise, certificates for any such unaccepted Old Capital Securities
will be returned, without expense, to the tendering holder thereof promptly
after the Expiration Date.
Holders who tender Old Capital Securities in connection with the Exchange
Offer will not be required to pay brokerage commissions or fees or, subject to
the instructions in the Letter of Transmittal, transfer taxes with respect to
the exchange of Old Capital Securities in connection with the Exchange Offer.
UPC will pay all charges and expenses, other than certain applicable taxes
described below, in connection with the Exchange Offer. See "-- Fees and
Expenses."
NEITHER THE BOARD OF DIRECTORS OF UPC NOR THE TRUSTEES OF THE TRUST MAKES
ANY RECOMMENDATION TO HOLDERS OF OLD CAPITAL SECURITIES AS TO WHETHER TO TENDER
OR REFRAIN FROM TENDERING ALL OR ANY PORTION OF THEIR OLD CAPITAL SECURITIES
PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO ONE HAS BEEN AUTHORIZED TO MAKE
ANY SUCH RECOMMENDATION. HOLDERS OF OLD CAPITAL SECURITIES MUST
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MAKE THEIR OWN DECISION WHETHER TO TENDER PURSUANT TO THE EXCHANGE OFFER AND, IF
SO, THE AGGREGATE AMOUNT OF OLD CAPITAL SECURITIES TO TENDER AFTER READING THIS
PROSPECTUS AND THE LETTER OF TRANSMITTAL AND CONSULTING WITH THEIR ADVISERS, IF
ANY, BASED ON THEIR OWN FINANCIAL POSITION AND REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" means 5:00 p.m., New York City time, on
, 1997 unless the Exchange Offer is extended by UPC and the Trust
(in which case the term "Expiration Date" shall mean the latest date and time to
which the Exchange Offer is extended).
UPC and the Trust expressly reserve the right in their sole and absolute
discretion, subject to applicable law, at any time and from time to time, (i) to
delay the acceptance of the Old Capital Securities for exchange, (ii) to
terminate the Exchange Offer (whether or not any Old Capital Securities have
theretofore been accepted for exchange) if UPC and the Trust determine, in their
sole and absolute discretion, that any of the events or conditions referred to
under "-- Conditions to the Exchange Offer" have occurred or exist or have not
been satisfied, (iii) to extend the Expiration Date of the Exchange Offer and
retain all Old Capital Securities tendered pursuant to the Exchange Offer,
subject, however, to the right of holders of Old Capital Securities to withdraw
their tendered Old Capital Securities as described under "-- Withdrawal Rights,"
and (iv) to waive any condition or otherwise amend the terms of the Exchange
Offer in any respect. If the Exchange Offer is amended in a manner determined by
UPC and the Trust to constitute a material change, or if UPC and the Trust waive
a material condition of the Exchange Offer, UPC or the Trust will promptly
disclose such amendment by means of a prospectus supplement that will be
distributed to the registered holders of the Old Capital Securities, and UPC and
the Trust will extend the Exchange Offer to the extent required by Rule 14e-1
under the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral or written notice thereof to the Exchange Agent (any
such oral notice to be promptly confirmed in writing) and by making a public
announcement thereof, and such announcement in the case of an extension will be
made no later than 9:00 a.m., New York City time, on the next business day after
the previously scheduled Expiration Date. Without limiting the manner in which
UPC or the Trust may choose to make any public announcement and subject to
applicable law, neither UPC nor the Trust shall have any obligation to publish,
advertise or otherwise communicate any such public announcement other than by
issuing a release to an appropriate news agency.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF NEW CAPITAL SECURITIES
Upon the terms and subject to the conditions of the Exchange Offer, UPC and
the Trust will exchange, and will issue to the Exchange Agent, New Capital
Securities for Old Capital Securities validly tendered and not withdrawn
(pursuant to the withdrawal rights described under "-- Withdrawal Rights")
promptly after the Expiration Date.
In all cases, delivery of New Capital Securities in exchange for Old
Capital Securities tendered and accepted for exchange pursuant to the Exchange
Offer will be made only after timely receipt by the Exchange Agent of (i) Old
Capital Securities or a book-entry confirmation of a book-entry transfer of Old
Capital Securities into the Exchange Agent's account at The Depositary Trust
Company ("DTC"), (ii) the Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees, and (iii)
any other documents required by the Letter of Transmittal.
The term "book-entry confirmation" means a timely confirmation of a
book-entry transfer of Old Capital Securities into the Exchange Agent's account
at DTC.
Subject to the terms and conditions of the Exchange Offer, UPC and the
Trust will be deemed to have accepted for exchange, and thereby exchanged, Old
Capital Securities validly tendered and not withdrawn as, if and when UPC or the
Trust gives oral or written notice to the Exchange Agent of UPC's and the
Trust's acceptance of such Old Capital Securities for exchange pursuant to the
Exchange Offer. The Exchange Agent will act as agent for UPC and the Trust for
the purpose of receiving tenders of Old Capital Securities, Letters of
Transmittal and related documents, and as agent for tendering holders for the
purpose of receiving Old Capital
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Securities, Letters of Transmittal and related documents and transmitting New
Capital Securities to validly tendering holders. Such exchange will be made
promptly after the Expiration Date. If for any reason whatsoever, acceptance for
exchange or the exchange of any Old Capital Securities tendered pursuant to the
Exchange Offer is delayed (whether before or after UPC's and the Trust's
acceptance for exchange of Old Capital Securities) or if UPC or the Trust
extends the Exchange Offer or is unable to accept for exchange or exchange Old
Capital Securities tendered pursuant to the Exchange Offer, then, without
prejudice to UPC or the Trust's rights set forth herein, the Exchange Agent may,
nevertheless, on behalf of UPC and the Trust and subject to Rule 14e-1(c) under
the Exchange Act, retain tendered Old Capital Securities and such Old Capital
Securities may not be withdrawn except to the extent tendering holders are
entitled to withdrawal rights as described under "-- Withdrawal Rights."
Pursuant to the Letter of Transmittal, a holder of Old Capital Securities
will warrant and agree in the Letter of Transmittal that it has full power and
authority to tender, exchange, sell, assign and transfer Old Capital Securities,
that the Trust will acquire good, marketable and unencumbered title to the
tendered Old Capital Securities, free and clear of all liens, restrictions,
charges and encumbrances, and the Old Capital Securities tendered for exchange
are not subject to any adverse claims or proxies. The holder also will warrant
and agree that it will, upon request, execute and deliver any additional
documents deemed by UPC, the Trust or the Exchange Agent to be necessary or
desirable to complete the exchange, sale, assignment, and transfer of the Old
Capital Securities tendered pursuant to the Exchange Offer.
PROCEDURES FOR TENDERING OLD CAPITAL SECURITIES
Valid Tender. Except as set forth below, in order for Old Capital
Securities to be validly tendered pursuant to the Exchange Offer, a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees and any other required documents, must be
received by the Exchange Agent at its address set forth under "-- Exchange
Agent," on or prior to the Expiration Date and either (i) tendered Old Capital
Securities must be received by the Exchange Agent, or (ii) such Old Capital
Securities must be tendered pursuant to the procedures for book-entry transfer
set forth below and a book-entry confirmation must be received by the Exchange
Agent, in each case on or prior to the Expiration Date, or (iii) the guaranteed
delivery procedures set forth below must be complied with.
If less than all of the Old Capital Securities are tendered, a tendering
holder should fill in the amount of Old Capital Securities being tendered in the
appropriate box on the Letter of Transmittal. The entire amount of Old Capital
Securities delivered to the Exchange Agent will be deemed to have been tendered
unless otherwise indicated.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS, IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL, RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Book Entry Transfer. The Exchange Agent will establish an account with
respect to the Old Capital Securities at DTC for purposes of the Exchange Offer
within two business days after the date of this Prospectus. Any financial
institution that is a participant in DTC's book-entry transfer facility system
may make a book-entry delivery of the Old Capital Securities by causing DTC to
transfer such Old Capital Securities into the Exchange Agent's account at DTC in
accordance with DTC's procedures for transfers. However, although delivery of
Old Capital Securities may be effected through book-entry transfer into the
Exchange Agent's account at DTC, the Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees and any other required documents, must in any case be delivered to
and received by the Exchange Agent at its address set forth under "-- Exchange
Agent" on or prior to the Expiration Date, or the guaranteed delivery procedure
set forth below must be complied with.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
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Signature Guarantees. Certificates for the Old Capital Securities need not
be endorsed and signature guarantees on the Letter of Transmittal are
unnecessary unless (a) a certificate for the Old Capital Securities is
registered in a name other than that of the person surrendering the certificate
or (b) such registered holder completes the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" in the Letter of Transmittal.
In the case of (a) or (b) above, such certificates for Old Capital Securities
must be duly endorsed or accompanied by a properly executed bond power, with the
endorsement or signature on the bond power and on the Letter of Transmittal
guaranteed by a firm or other entity identified in Rule 17Ad-15 under the
Exchange Act as an "eligible guarantor institution," including (as such terms
are defined therein): (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association (an "Eligible Institution"), unless surrendered
on behalf of such Eligible Institution. See Instruction 1 to the Letter of
Transmittal.
Guaranteed Delivery. If a holder desires to tender Old Capital Securities
pursuant to the Exchange Offer and the certificates for such Old Capital
Securities are not immediately available or time will not permit all required
documents to reach the Exchange Agent on or before the Expiration Date, or the
procedures for book-entry transfer cannot be completed on a timely basis, such
Old Capital Securities may nevertheless be tendered, provided, however, that all
of the following guaranteed delivery procedures are complied with:
(i) such tenders are made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form accompanying the Letter of Transmittal,
is received by the Exchange Agent, as provided below, on or prior to
Expiration Date; and
(iii) the certificates (or a book-entry confirmation) representing all
tendered Old Capital Securities, in proper form for transfer, together with
a properly completed and duly executed Letter of Transmittal (or facsimile
thereof), with any required signature guarantees and any other documents
required by the Letter of Transmittal, are received by the Exchange Agent
within five New York Stock Exchange trading days after the date of
execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or transmitted
by facsimile or mail to the Exchange Agent and must include a guarantee by an
Eligible Institution in the form set forth in such notice.
Notwithstanding any other provision hereof, the delivery of New Capital
Securities in exchange for Old Capital Securities tendered and accepted for
exchange pursuant to the Exchange Offer will in all cases be made only after
timely receipt by the Exchange Agent of Old Capital Securities, or of a
book-entry confirmation with respect to such Old Capital Securities, and a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof), together with any required signature guarantees and any other
documents required by the Letter of Transmittal. Accordingly, the delivery of
New Capital Securities might not be made to all tendering holders at the same
time, and will depend upon when Old Capital Securities, book-entry confirmations
with respect to Old Capital Securities and other required documents are received
by the Exchange Agent.
The Trust's acceptance for exchange of Old Capital Securities tendered
pursuant to any of the procedures described above will constitute a binding
agreement between the tendering holder and the Trust upon the terms and subject
to the conditions of the Exchange Offer.
Determination of Validity. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange of
any tendered Old Capital Securities will be determined by the Trust, in its sole
discretion, whose determination shall be final and binding on all parties. The
Trust reserves the absolute right, in its sole and absolute discretion, to
reject any and all tenders determined by it not to be in proper form or the
acceptance of which, or exchange for, may, in the view of counsel to the Trust,
be unlawful. The Trust also reserves the absolute right, subject to applicable
law, to waive any of the conditions of the Exchange Offer as set forth under
"-- Conditions to the Exchange Offer" or any condition or irregularity in any
tender of Old Capital Securities of any particular holder whether or not similar
conditions or irregularities are waived in the case of other holders.
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The Trust's interpretation of the terms and conditions of the Exchange
Offer (including the Letter of Transmittal and the instructions thereto) will be
final and binding. No tender of Old Capital Securities will be deemed to have
been validly made until all irregularities with respect to such tender have been
cured or waived. Neither UPC, the Trust, any affiliates or assigns of UPC, the
Trust or the Exchange Agent, nor any other person shall be under any duty to
give any notification of any irregularities in tenders or incur any liability
for failure to give any such notification.
If any Letter of Transmittal, endorsement, bond power, power of attorney,
or any other document required by the Letter of Transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and unless waived by the Trust,
proper evidence satisfactory to the Trust, in its sole discretion, of such
person's authority to so act must be submitted.
A beneficial owner of Old Capital Securities that are held by or registered
in the name of a broker, dealer, commercial bank, trust company or other nominee
or custodian is urged to contact such entity promptly if such beneficial owner
wishes to participate in the Exchange Offer.
RESALES OF NEW CAPITAL SECURITIES
Based on interpretations by the staff of the Commission, as set forth in
no-action letters issued to third parties, UPC and the Trust believe that
holders of Old Capital Securities (other than any holder that is an "affiliate"
of UPC or the Trust as defined under Rule 405 of the Securities Act) who
exchange their Old Capital Securities for New Capital Securities pursuant to the
Exchange Offer may offer such New Capital Securities for resale, resell such New
Capital Securities and otherwise transfer such New Capital Securities without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such New Capital Securities are acquired in the
ordinary course of such holders' business and such holders are not engaged in,
and do not intend to engage in, a distribution of such New Capital Securities
and have no arrangement or understanding with any person to participate in the
distribution of such New Capital Securities. However, the staff of the
Commission has not considered this Exchange Offer in the context of a no-action
letter, and there can be no assurance that the staff of the Commission would
make a similar determination with respect to this Exchange Offer. Each
broker-dealer that receives New Capital Securities for its own account in
exchange for Old Capital Securities, where such Old Capital Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Capital Securities. See "Plan of
Distribution."
WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Old Capital Securities may
be withdrawn at any time on or prior to the Expiration Date.
In order for a withdrawal to be effective a written, telegraphic, telex or
facsimile transmission of such notice of withdrawal must be timely received by
the Exchange Agent at its address set forth under "-- Exchange Agent" on or
prior to the Expiration Date. Any such notice of withdrawal must specify the
name of the person who tendered the Old Capital Securities to be withdrawn, the
aggregate principal amount of Old Capital Securities to be withdrawn, and (if
certificates for such Old Capital Securities have been tendered) the name of the
registered holder of the Old Capital Securities as set forth on the Old Capital
Securities, if different from that of the person who tendered such Old Capital
Securities. If Old Capital Securities have been delivered or otherwise
identified to the Exchange Agent, then prior to the physical release of such Old
Capital Securities, the tendering holder must submit the serial numbers shown on
the particular Old Capital Securities to be withdrawn and the signature on the
notice of withdrawal must be guaranteed by an Eligible Institution, except in
the case of Old Capital Securities tendered for the account of an Eligible
Institution. If Old Capital Securities have been tendered pursuant to the
procedures for book-entry transfer set forth in "-- Procedures for Tendering Old
Capital Securities," the notice of withdrawal must specify the name and number
of the account at DTC to be credited with the withdrawal of Old Capital
Securities, in which case a notice of withdrawal will be effective if timely
delivered to the Exchange Agent by written, telegraphic, telex or facsimile
transmission. Withdrawals of tenders
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<PAGE> 35
of Old Capital Securities may not be rescinded. Old Capital Securities properly
withdrawn will not be deemed validly tendered for purposes of the Exchange
Offer, but may be retendered at any subsequent time on or prior to the
Expiration Date by following any of the procedures described above under
"-- Procedures for Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Trust, in its sole
discretion, which determination shall be final and binding on all parties.
Neither UPC, the Trust, any affiliates or assigns of UPC or the Trust, the
Exchange Agent nor any other person shall be under any duty to give any
notification of any irregularities in any notice of withdrawal or incur any
liability for failure to give any such notification. Any Old Capital Securities
which have been tendered but which are withdrawn will be returned to the holder
thereof promptly after withdrawal.
DISTRIBUTIONS ON THE NEW CAPITAL SECURITIES
Holders of Old Capital Securities whose Old Capital Securities are accepted
for exchange will not receive accumulated Distributions on such Old Capital
Securities for any period from and after the last Distribution Date with respect
to such Old Capital Securities prior to the original issue date of the New
Capital Securities or, if no such Distributions have been made, will not receive
any accumulated Distributions on such Old Capital Securities, and will be deemed
to have waived the right to receive any Distributions on such Old Capital
Securities accumulated from and after such Distribution Date or, if no such
Distributions have been made, from and after December 12, 1996. However, because
Distributions on the New Capital Securities will accumulate from December 12,
1996, or the last Distribution Date, whichever is the latter, the amount of the
Distributions received by holders whose Old Capital Securities are accepted for
exchange will not be affected by the exchange.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any
extension of the Exchange Offer, the Trust will not be required to accept for
exchange, or to exchange, any Old Capital Securities for any New Capital
Securities, and, as described below, may terminate the Exchange Offer (whether
or not any Old Capital Securities have theretofore been accepted for exchange)
or may waive any conditions to or amend the Exchange Offer, if any of the
following conditions have occurred or exists or have not been satisfied:
(a) there shall occur a change in the current interpretations by the
staff of the Commission which permits the New Capital Securities issued
pursuant to the Exchange Offer in exchange for Old Capital Securities to be
offered for resale, resold and otherwise transferred by holders thereof
(other than broker-dealers and any such holder which is an "affiliate" of
UPC or the Trust within the meaning of Rule 405 under the Securities Act)
without compliance with the registration and prospectus delivery provisions
of the Securities Act, provided that such New Capital Securities are
acquired in the ordinary course of such holders' business and such holders
have no arrangement or understanding with any person to participate in the
distribution of such New Capital Securities; or
(b) any action or proceeding shall have been instituted or threatened
in any court or by or before any governmental agency or body with respect
to the Exchange Offer which, in UPC's and the Trust's judgment, would
reasonably be expected to impair the ability of UPC or the Trust to proceed
with the Exchange Offer; or
(c) any law, statute, rule or regulation shall have been adopted or
enacted which, in UPC's and the Trust's judgment, would reasonably be
expected to impair the ability of UPC or the Trust to proceed with the
Exchange Offer;
(d) a banking moratorium shall have been declared by United States
federal or Tennessee or New York State authorities which, in UPC's and the
Trust's judgment, would reasonably be expected to impair the ability of UPC
or the Trust to proceed with the Exchange Offer;
(e) trading on the New York Stock Exchange or generally in the United
States over-the-counter market shall have been suspended by order of the
Commission or any other governmental authority which, in UPC's
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<PAGE> 36
and the Trust's judgment, would reasonably be expected to impair the
ability of UPC or the Trust to proceed with the Exchange Offer; or
(f) a stop order shall have been issued by the Commission or any state
securities authority suspending the effectiveness of the Registration
Statement or proceedings shall have been initiated or, to the knowledge of
UPC or the Trust, threatened for that purpose; or
(g) any governmental approval has not been obtained, which approval
UPC and the Trust shall, in their sole judgment, deem necessary for the
consummation of the Exchange Offer as contemplated hereby; or
(h) any change, or any development involving a prospective change, in
the business or financial affairs of UPC or the Trust or any of their
subsidiaries have occurred which, in the sole judgment of UPC and the
Trust, might materially impair the ability of UPC or the Trust to proceed
with the Exchange Offer; or
(i) UPC and the Trust shall have determined, in their sole discretion,
that consummation of the Exchange Offer could result in adverse tax
consequences to UPC and/or the Trust (in which event UPC and the Trust
could proceed with a shelf registration of the Old Capital Securities). See
"The Exchange Offer -- Purpose and Effect of the Exchange Offer."
If UPC and the Trust determine in their sole and absolute discretion that
any of the foregoing events or conditions has occurred or exists or has not been
satisfied, UPC and the Trust may, subject to applicable law, terminate the
Exchange Offer (whether or not any Old Capital Securities have theretofore been
accepted for exchange) or may waive any such condition or otherwise amend the
terms of the Exchange Offer in any respect. If such waiver or amendment
constitutes a material change to the Exchange Offer, UPC and the Trust will
promptly disclose such waiver by means of a prospectus supplement that will be
distributed to the registered holders of the Old Capital Securities, and UPC and
the Trust will extend the Exchange Offer to the extent required by Rule 14e-1
under the Exchange Act.
EXCHANGE AGENT
The First National Bank of Chicago has been appointed as Exchange Agent for
the Exchange Offer. Delivery of the Letters of Transmittal and any other
required documents, questions, requests for assistance, and requests for
additional copies of this Prospectus or of the Letter of Transmittal should be
directed to the Exchange Agent as follows:
The First National Bank of Chicago
c/o First Chicago Trust Company of New York
14 Wall Street
8th Floor, Window 2
New York, New York 10005
Attn: Corporate Trust Administration
Telephone: (212) 240-8801
Telefax: (212) 240-8938
Delivery to other than the above address or facsimile number will not
constitute a valid delivery.
FEES AND EXPENSES
UPC has agreed to pay the Exchange Agent reasonable and customary fees for
its services and will reimburse it for its reasonable out-of-pocket expenses in
connection therewith. UPC will also pay brokerage houses and other custodians,
nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them
in forwarding copies of this Prospectus and related documents to the beneficial
owners of Old Capital Securities, and in handling or tendering for their
customers.
Holders who tender their Old Capital Securities for exchange will not be
obligated to pay any transfer taxes in connection therewith. If, however, New
Capital Securities are to be delivered to, or are to be issued in the name of,
any person other than the registered holder of the Old Capital Securities
tendered, or if a transfer tax is imposed for any reason other than the exchange
of Old Capital Securities in connection with the Exchange Offer,
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<PAGE> 37
then the amount of any such transfer taxes (whether imposed on the registered
holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes will
be billed directly to such tendering holder.
Neither UPC nor the Trust will make any payment to brokers, dealers or
others soliciting acceptances of the Exchange Offer.
DESCRIPTION OF THE CAPITAL SECURITIES
The Old Capital Securities were issued, and the New Capital Securities will
be issued pursuant to the terms of the Declaration. It is expected that at the
time the Registration Statement becomes effective under the Securities Act, the
Declaration will be qualified under the Trust Indenture Act. The Declaration
will not be qualified under the Trust Indenture Act, except upon effectiveness
of a registration statement for the Exchange Offer. See "Description of the
Capital Securities -- Exchange Offer; Registration Rights." By its terms,
however, the Declaration will incorporate certain provisions of the Trust
Indenture Act, and, upon consummation of the Exchange Offer, the Declaration
will be subject to and governed by the Trust Indenture Act. The Institutional
Trustee, The First National Bank of Chicago, will act as trustee for the Capital
Securities under the Declaration. The terms of the Capital Securities includes
those stated in the Declaration and those made part of the Declaration by the
Trust Indenture Act. The following summary of the material terms and provisions
of the Capital Securities does not purport to be complete and is subject to, and
qualified in its entirety by reference to the Declaration (a copy of which has
been filed as an exhibit to the Registration Statement of which this Prospectus
is a part), the Trust Act and the Trust Indenture Act.
GENERAL
The Declaration authorizes the Regular Trustees of the Trust to issue on
behalf of the Trust the Trust Securities in respect of the Trust, which
represent undivided beneficial interests in the assets of the Trust. All of the
Common Securities of the Trust are owned by UPC. The Common Securities will rank
pari passu, and payments will be made thereon on a pro rata basis, with the
Capital Securities except that upon the occurrence and during the continuance of
a Declaration Event of Default with respect to the Trust, the rights of the
holders of the Common Securities to receive payment of periodic Distributions
and payments upon liquidation, redemption and otherwise will be subordinated to
the rights of the holders of the Capital Securities. The Declaration does not
permit the issuance by the Trust of any securities other than the Trust
Securities, or the incurrence of any indebtedness by the Trust. Pursuant to the
Declaration, the Institutional Trustee owns the Subordinated Debt Securities
purchased by the Trust from UPC for the benefit of the holders of the Trust
Securities. The payment of Distributions out of money held by the Trust, and
payments upon redemption of the Capital Securities or liquidation of the Trust,
are guaranteed by UPC to the extent described under "Description of the
Guarantee." The Guarantee is and will continue to be held by The First National
Bank of Chicago, the Guarantee Trustee, for the benefit of the holders of the
Capital Securities. The Guarantee does not cover payment of Distributions in
respect of Capital Securities to the extent the Trust does not have available
funds to pay such Distributions. In such event, the remedy of holders of such
Capital Securities would be, through the vote of holders of a majority in
liquidation amount of such Capital Securities, to direct the Institutional
Trustee to enforce the Institutional Trustee's rights under the Subordinated
Debt Securities held by the Trust except in the limited circumstances in which a
holder of such Capital Securities may take Direct Action. See "-- Voting Rights"
and "-- Declaration Events of Default."
DISTRIBUTIONS
Distributions on the Capital Securities will be fixed at a rate per annum
of 8.20% of the stated liquidation amount of $1,000 per Capital Security.
Distributions in arrears for more than one semiannual period will accrue on the
Capital Securities at the distribution rate per annum of 8.20%, compounded
semiannually. The term "Distribution" as used herein includes cash distributions
and any such compounded distributions payable unless
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<PAGE> 38
otherwise stated. The amount of Distributions payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed per 30-day month.
Distributions on the Capital Securities are cumulative, accrue from
December 12, 1996 and are payable semiannually in arrears on June 15 and
December 15 of each year, commencing June 15, 1997, when, as and if available
for payment. Distributions will be made by the Institutional Trustee, except as
otherwise described below.
UPC has the right under the Indenture to defer payments of interest on the
Subordinated Debt Securities by extending the interest payment period at any
time and from time to time, subject to the conditions described below. If such
right is exercised, semiannual Distributions on the Capital Securities will also
be deferred (though such Distributions would continue to accrue at the
distribution rate of 8.20% per annum compounded semiannually (to the extent
permitted by law) since interest would continue to accrue on the of Subordinated
Debt Securities at a rate of 8.20% per annum, compounded semiannually, to the
extent permitted by law) during any Extension Period. Such right to extend any
interest payment period for the Subordinated Debt Securities is limited to
Extension Periods, each not exceeding 10 consecutive semiannual periods, and no
Extension Period may be initiated while accrued interest from a prior completed
Extension Period is unpaid or while UPC is in default on the payment of interest
that has become due and payable on the Subordinated Debt Securities, and no
Extension Period may extent beyond the maturity of the Subordinated Debt
Securities. In the event that UPC exercises this right, then during any
Extension Period (a) UPC shall not declare or pay dividends on, make a
distribution with respect to, or redeem, purchase or 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 UPC of its obligations under any employee benefit
plans, (ii) as a result of a reclassification of UPC's capital stock or rights
to acquire such capital stock or the exchange or conversion of one class or
series of UPC's capital stock or rights to acquire such capital stock for
another class or series of UPC's capital stock or rights to acquire such capital
stock, (iii) the purchase of fractional interests in shares of UPC'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 UPC's capital stock or rights to acquire such capital stock with UPC's
capital stock or rights to acquire such capital stock, or (v) any declaration of
a dividend in connection with the implementation of UPC's Shareholder Rights
Plan, (or the redemption or repurchase of any rights pursuant thereto), or make
guarantee payments with respect to the foregoing and (b) UPC shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by UPC that rank pari passu with or junior to
the Subordinated Debt Securities. Prior to the termination of any such Extension
Period in respect of the Subordinated Debt Securities, UPC may further extend
the interest payment period; provided, however, that each such Extension Period
in respect of the Subordinated Debt Securities, together with all such previous
and further extensions thereof, may not exceed 10 consecutive semiannual periods
or extend beyond the maturity of the Subordinated Debt Securities. Upon the
termination of any Extension Period in respect of the Subordinated Debt
Securities and the payment of all amounts then due, UPC may commence a new
Extension Period, subject to the above requirements. See "Description of the
Subordinated Debt Securities -- Interest" and "-- Option to Extend Interest
Payment Period." If Distributions are deferred, the Distributions due shall be
paid on the date that the related Extension Period terminates to holders of
applicable Capital Securities as they appear on the books and records of the
Trust on the record date immediately preceding such date.
Distributions on the Capital Securities must be paid on the dates payable
(after giving effect to any Extension Period) to the extent that the Trust has
funds available for the payment of such Distributions in the Property Account.
The Trust's funds available for distribution to the holders of the Capital
Securities will be limited to payments received from UPC on the Subordinated
Debt Securities. See "Description of the Subordinated Debt Securities." The
payment of Distributions out of moneys held by the Trust is guaranteed by UPC to
the extent set forth under "Description of the Guarantee."
Distributions on the Capital Securities will be payable to the holders
thereof as they appear on the books and records of the Trust on relevant record
dates. Such Distributions will be paid through the Institutional Trustee who
will hold amounts received in respect of the Subordinated Debt Securities in the
Property Account of the Trust for the benefit of the holders of the Capital
Securities. While the Capital Securities are held solely in book-
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<PAGE> 39
entry only form, the relevant record date will be one Business Day (as defined
below) prior to the relevant payment dates. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such payment will be
made as described under "-- Book-Entry Only Issuance -- The Depository Trust
Company" below. In the event that the Capital Securities do not continue to
remain in book-entry only form, the Regular Trustees shall select record dates,
which shall be 15 days prior to the relevant payment date. Payments in respect
of the Capital Securities held in registered certificated form will be made by
check to the holder entitled thereto. In the event that any date on which
Distributions are to be made on the Capital Securities is not a Business Day,
then payment of the Distributions payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) with the same force and effect as if made
on such payment date. A "Business Day" shall mean any day other than 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.
REDEMPTION
The Subordinated Debt Securities will mature on December 15, 2026 and may
be redeemed by UPC at par, together with accrued and unpaid interest thereon to
the date of redemption, in whole or in part, at any time in certain
circumstances upon the occurrence of a Tax Event. In addition, the Subordinated
Debt Securities may be redeemed by UPC, in whole or in part, at any time and
from time to time on or after December 15, 2006, other than upon the occurrence
of a Tax Event, at the Call Prices (expressed as a percentage of the principal
amount) expressed below:
<TABLE>
<CAPTION>
IF REDEEMED DURING THE
12-MONTH PERIOD BEGINNING CALL PRICE
- ------------------------- ----------
<S> <C>
December 15, 2006........................................... 103.8340%
December 15, 2007........................................... 103.4506
December 15, 2008........................................... 103.0672
December 15, 2009........................................... 102.6838
December 15, 2010........................................... 102.3004
December 15, 2011........................................... 101.9170
December 15, 2012........................................... 101.5336
December 15, 2013........................................... 101.1502
December 15, 2014........................................... 100.7668
December 15, 2015........................................... 100.3834
</TABLE>
and thereafter at 100% of the principal amount, (each a "Call Price"), together,
in each case, with accrued and unpaid interest thereon to the date of
redemption. In each case, the right of UP to redeem the Subordinated Debt
Securities is subject to receipt of prior approval by the Federal Reserve if
then required under applicable capital guidelines or policies of the Federal
Reserve.
Upon the repayment in full at maturity or redemption in whole or in part of
the Subordinated Debt Securities (other than following the distribution of the
Subordinated Debt Securities to the holders of the Trust Securities), the
proceeds from such repayment or payment shall simultaneously be applied to
redeem on a pro rata basis (i) at $1,000 per Trust Security, plus accrued and
unpaid distributions to the date of repayment (in the case of repayment at
maturity) or (ii) at the Redemption Price (in the case of payment on
redemption), Trust Securities having an aggregate liquidation amount equal to
the aggregate principal amount of the Subordinated Debt Securities so repaid or
redeemed; provided, however, that holders of such Trust Securities shall be
given no less than 30 nor more than 60 days' notice of such redemption (other
than at the scheduled maturity of the Subordinated Debt Securities). See
"Description of the Subordinated Debt Securities -- Redemption." In the event
that fewer than all of the outstanding Capital Securities are to be redeemed,
such Capital Securities will be redeemed in accordance with the procedures of
DTC (as defined herein) as described under "-- Book-Entry Only Issuance -- The
Depository Trust Company" below.
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<PAGE> 40
TAX EVENT REDEMPTION
"Tax Event" means that the Regular Trustees of the Trust shall have
received an opinion of a nationally recognized independent tax counsel
experienced in such matters to the effect that, as a result of (a) any amendment
to, clarification of or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any judicial decision or
official administrative pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action") or (c) any amendment to,
clarification of or change in the administrative position or interpretation of
any Administrative Action or judicial decision that differs from the theretofore
generally accepted position, in each case, by any legislative body, court,
governmental agency or regulatory body, irrespective of the manner in which such
amendment, clarification or change is made known, which amendment, clarification
or change is effective or such Administrative Action or decision is announced,
in each case, on or after December 12, 1996, there is more than an insubstantial
risk that (i) the Trust is, or will be within 90 days of the date thereof,
subject to United States federal income tax with respect to interest accrued or
received on the Subordinated Debt Securities held by the Trust or subject to
more than a de minimis amount of other taxes, duties or other governmental
charges, (ii) any portion of interest payable by UPC to the Trust on the
Subordinated Debt Securities is not, or within 90 days of the date thereof will
not be, deductible by UPC for United States federal income tax purposes, or
(iii) UPC could become liable to pay, on the next date on which any amount would
be payable with respect to the Subordinated Debt Securities, any Additional
Interest (as defined herein).
If, at any time, a Tax Event in respect of the Trust should occur and be
continuing, and UPC receives an opinion (a "Redemption Tax Opinion") of
nationally recognized independent tax counsel experienced in such matters that,
as a result of such Tax Event there is more than an insubstantial risk that UPC
would be precluded from deducting the interest on the Subordinated Debt
Securities held by the Institutional Trustee for United States federal income
tax purposes, even if the Subordinated Debt Securities were distributed to the
holders of Trust Securities in liquidation of such holders' interests in the
Trust (as described in "-- Liquidation Distribution Upon Dissolution" below),
UPC shall have the right at any time, subject to receipt by UPC of prior
approval by the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve, within 90 days following the
occurrence of such Tax Event, upon not less than 30 nor more than 60 days'
notice, to redeem the Subordinated Debt Securities held by the Institutional
Trustee, in whole or in part, for cash so long as such Tax Event is continuing,
at their full principal amounts plus any accrued and unpaid interest thereon to
the dates of redemption (the "Tax Event Redemption") and, following such
redemption, Trust Securities with an aggregate liquidation amount equal to the
aggregate principal amount of the Subordinated Debt Securities so redeemed shall
be redeemed by the Trust at the applicable Redemption Price; provided, however,
that (i) if at the time there is available to UPC or the Trust the opportunity
to eliminate, within such 90-day period the adverse effects of the Tax Event by
taking some ministerial action, such as filing a form or making an election or
pursuing some other similar reasonable measure that will have no adverse effect
on the Trust, UPC or the holders of the Trust Securities and (ii) if such notice
has not yet been given, UPC or the Trust will pursue such measure in lieu of
redemption.
REDEMPTION PROCEDURES
The Trust may not redeem fewer than all of the outstanding Capital
Securities unless all accrued and unpaid Distributions have been paid on all
such Capital Securities for all semiannual distribution periods terminating on
or prior to the date of redemption.
If the Trust gives a notice of redemption in respect of Capital Securities
(which notice will be irrevocable), then, by 12:00 noon, New York City time, on
the redemption date, provided that UPC has paid to the Institutional Trustee a
sufficient amount of cash in connection with the related redemption or maturity
of the Subordinated Debt Securities, the Institutional Trustee will irrevocably
deposit with the Depositary or its nominee funds sufficient to pay the
applicable Redemption Price and will give the Depositary irrevocable
instructions and authority to pay such Redemption Price to the holders of such
Capital Securities. See "-- Book-Entry Only Issuance -- The Depository Trust
Company." If notice of redemption shall have been given and funds deposited as
required, then, immediately prior to the close of business on the date of such
deposit, Distributions will cease
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<PAGE> 41
to accrue on the Capital Securities so called for redemption and all rights of
holders of such Capital Securities so called for redemption will cease, except
the right of the holders of such Capital Securities to receive the applicable
Redemption Price but without interest on such Redemption Price. In the event
that any date fixed for redemption of Capital Securities is not a Business Day,
then payment of the Redemption Price payable on such date will be made on the
next succeeding day that is a Business Day (without any interest or other
payment in respect of any such delay), except that if such next succeeding
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day. In the event that payment of the Redemption
Price in respect of Capital Securities is improperly withheld or refused and not
paid by the Institutional Trustee or by UPC pursuant to the Guarantee,
Distributions on such Capital Securities will continue to accrue at the then
applicable rate from the original redemption date to the date of payment, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
In the event that fewer than all of the outstanding Capital Securities are
to be redeemed, Capital Securities will be redeemed in accordance with the
procedures of DTC as described below under "-- Book-Entry Only Issuance -- The
Depository Trust Company."
In the event of any redemption of Capital Securities in part, the Trust
shall not be required to (i) issue, register the transfer of or exchange any
Certificated Security (as defined herein) during a period beginning at the
opening of business 15 days before any selection for redemption of Capital
Securities and ending at the close of business on the earliest date on which the
relevant notice of redemption is deemed to have been given to all holders of
Capital Securities to be so redeemed or (ii) register the transfer of or
exchange any Certificated Securities so selected for redemption, in whole or in
part, except for the unredeemed portion of any Certificated Securities being
redeemed in part.
Subject to the foregoing and applicable law (including, without limitation,
United States federal securities laws), provided the acquiror is not the holder
of the Common Securities or the obligor under the Subordinated Debt Securities,
UPC or its subsidiaries may at any time, and from time to time, purchase
outstanding Capital Securities by tender, in the open market or by private
agreement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Pursuant to the Declaration, the Trust shall dissolve (i) on December 31,
2050, the expiration of the term of the Trust, (ii) upon the bankruptcy of UPC
or the Trust, (iii) (other than in connection with a merger, consolidation or
similar transaction not prohibited by the Indenture, the Declaration or the
Guarantee, as the case may be) upon the filing of a certificate of dissolution
or its equivalent with respect to UPC, upon the consent of the holders of at
least a majority in liquidation amount of the Trust Securities voting together
as a single class to file a certificate of cancellation with respect to the
Trust, or upon the revocation of the charter of UPC and the expiration of 90
days after the date of revocation without a reinstatement thereof, (iv) upon
exercise of the right of the holder of all of the outstanding Common Securities
to dissolve the Trust as described below, (v) upon the entry of a decree of a
judicial dissolution of UPC or the Trust, or (vi) upon the redemption of all of
the Trust Securities. Pursuant to the Declaration, as soon as practicable after
the dissolution of the Trust and upon completion of the winding up of the Trust,
the Trust shall terminate upon the filing of a certificate of cancellation.
In the event of any voluntary or involuntary dissolution of the Trust (each
a "Dissolution Event") other than in connection with a redemption of the
Subordinated Debt Securities as previously described, the holders of the Capital
Securities issued by the Trust will be entitled to receive out of the assets of
the Trust, after satisfaction of liabilities to creditors of the Trust (to the
extent not satisfied by UPC), distributions in an amount equal to the aggregate
of the stated liquidation amount of $1,000 per Capital Security (the
"Liquidation Amount") plus accrued and unpaid Distributions thereon to the date
of payment (the "Liquidation Distribution"), unless, in connection with such
Dissolution Event, Subordinated Debt Securities in an aggregate stated principal
amount equal to the aggregate stated liquidation amount of, with identical
premium to, if any, with an interest rate identical to the distribution rate of,
and bearing accrued and unpaid interest equal to accrued and unpaid
Distributions on such Capital Securities, have been distributed on a pro rata
basis to the holders of such Capital Securities in exchange for such Capital
Securities as is required under certain circumstances as described below.
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UPC, as the holder of all of the Common Securities, has the right at any
time to dissolve the Trust (including but not limited to the occurrence of a Tax
Event), subject to receipt of prior approval by the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal Reserve,
with the result that, after satisfaction of liabilities to creditors of the
Trust (to the extent not satisfied by UPC), unless the Subordinated Debt
Securities held by the Trust are redeemed in the circumstances described herein,
the Subordinated Debt Securities would be distributed to the holders of the
Trust Securities in liquidation of the holders' interests in the Trust in
accordance with its aggregate stated liquidation amount thereof, in liquidation
of the Trust.
If an early dissolution occurs as described in clause (i), (ii), (iii) or
(v) of the first paragraph of this section, the Trust shall be dissolved by the
Union Planters Trustees as expeditiously as such Union Planters Trustees
determine to be possible by distributing, after paying or making reasonable
provision to pay all claims and obligations of the Trust in accordance with
applicable law (to the extent not paid by UPC), to the holders of the Trust
Securities, the Subordinated Debt Securities, unless such distribution is
determined by the Institutional Trustee not to be practical, in which event such
holders will be entitled to receive out of the assets of the Trust available for
distribution to holders, after paying or making reasonable provision to pay all
claims and obligations of the Trust in accordance with applicable law (to the
extent not paid by UPC), an amount equal to the Liquidation Distribution. An
early dissolution of the Trust pursuant to clause (iv) above shall occur only if
the Union Planters Trustees determine that such liquidation is possible by
distributing, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with applicable law (to the extent not
paid by UPC), to the holders of the Trust Securities issued by the Trust, the
Subordinated Debt Securities, and each such distribution occurs.
If, upon any such Dissolution Event, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on such Capital Securities shall be paid on a pro rata basis. The
holder of the Common Securities issued by the Trust will be entitled to receive
distributions upon any such Dissolution Event pro rata with the holders of such
Capital Securities, except that if a Declaration Event of Default has occurred
and is continuing in respect of the Trust, the Capital Securities shall have a
preference over the Common Securities with regard to such distributions.
Upon any Dissolution Event in connection with which the Subordinated Debt
Securities are distributed, if at the time of such Dissolution Event the Capital
Securities are rated by at least one nationally recognized statistical rating
organization, UPC will use its best efforts to obtain from at least one other
rating organization a rating for the Subordinated Debt Securities.
After the date for any distribution of Subordinated Debt Securities upon
dissolution of the Trust, (i) the Trust Securities will be deemed to be no
longer outstanding, (ii) the Depositary (as defined herein) or its nominee, as
the record holder of the Capital Securities, will receive a registered Global
Certificate (as defined herein) or Certificates representing the Subordinated
Debt Securities to be delivered upon such dissolution, and (iii) any
certificates representing Capital Securities not held by the Depositary or its
nominee will be deemed to represent undivided beneficial interests in such of
the Subordinated Debt Securities as have an aggregate principal amount equal to
the aggregate stated liquidation amount of, with an interest rate identical to
the distribution rate of, and bearing accrued and unpaid interest equal to
accrued and unpaid Distributions on, such Capital Securities until such
certificates are presented to UPC or its agent for transfer or reissuance.
There can be no assurance as to the market prices for either the Capital
Securities or the Subordinated Debt Securities that may be distributed in
exchange for the Capital Securities if a dissolution and liquidation of the
Trust were to occur. Accordingly, the Capital Securities that an investor may
purchase, whether in the secondary market or otherwise, or the Subordinated Debt
Securities that an investor may receive if a dissolution and liquidation of the
Trust were to occur, may trade at a discount to the price paid to purchase the
Capital Securities.
DECLARATION EVENTS OF DEFAULT
An event of default under the Indenture in respect of the Subordinated Debt
Securities issued to the Trust (an "Indenture Event of Default") constitutes an
event of default under the Declaration with respect to the Trust Securities
(each a "Declaration Event of Default"); provided, however, that pursuant to the
Declaration, the
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holder of the Common Securities will be deemed to have waived any Declaration
Event of Default with respect to such Common Securities until all Declaration
Events of Default with respect to the Capital Securities have been cured, waived
or otherwise eliminated. Until such Declaration Events of Default with respect
to such Capital Securities have been so cured, waived, or otherwise eliminated,
the Institutional Trustee will be deemed to be acting solely on behalf of the
holders of the Capital Securities, and only the holders of such Capital
Securities will have the right to direct the Institutional Trustee with respect
to certain matters under the Declaration, and therefore the Indenture. The
holders of a majority in liquidation amount of the Capital Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Institutional Trustee or to direct the exercise of any
trust or power conferred upon the Institutional Trustee under the Declaration,
including the right to direct the Institutional Trustee to exercise the remedies
available to it as holder of the Subordinated Debt Securities. If the
Institutional Trustee fails to enforce its rights under the Subordinated Debt
Securities after the holders of a majority in liquidation amount of such Capital
Securities have so directed the Institutional Trustee, to the fullest extent
permitted by law, a holder of record of such Capital Securities may institute a
legal proceeding against UPC to enforce the Institutional Trustee's rights under
the Subordinated Debt Securities without first instituting any legal proceeding
against the Institutional Trustee or any other person or entity. Notwithstanding
the foregoing, if a Declaration Event of Default relating to Capital Securities
of the Trust has occurred and is continuing and such event is attributable to
the failure of UPC to pay interest or principal (or premium, if any) on the
Subordinated Debt Securities issued to the Trust on the respective dates such
interest or principal (or premium, if any) is payable (or in the case of
redemption, the redemption date), then a holder of record of such Capital
Securities may institute a Direct Action against UPC for payment, on or after
the respective due dates specified in the Subordinated Debt Securities, to such
holder directly of the principal of (or premium, if any) or interest on
Subordinated Debt Securities having an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Securities of such holder. In
connection with such Direct Action, UPC will be subrogated to the rights of such
holder of Capital Securities under the applicable Declaration to the extent of
any payment made by UPC to such holder of Capital Securities in such Direct
Action; provided, however, that no such subrogation right may be exercised so
long as a Declaration Event of Default has occurred and is continuing. The
holders of Capital Securities will not be able to exercise directly any other
remedy available to the holders of the Subordinated Debt Securities issued to
the Trust.
Upon the occurrence of a Declaration Event of Default relating to Capital
Securities, the Institutional Trustee, so long as it is the sole holder of the
Subordinated Debt Securities issued to the Trust, the right under the Indenture
to declare the principal of (or premium, if any) and interest on the
Subordinated Debt Securities to be immediately due and payable. UPC and the
Trust are each required to file annually with the Institutional Trustee an
officer's certificate as to its compliance with all conditions and covenants
under the Declaration.
VOTING RIGHTS
Except as described herein, under the Trust Act and under "Description of
the Guarantee -- Modification of the Guarantee; Assignment", and as otherwise
required by law and the Declaration, the holders of the Capital Securities will
have no voting rights. The Regular Trustees are required to call a meeting of
the holders of the Capital Securities if directed to do so by holders of at
least 10% in aggregate liquidation amount thereof.
Subject to the requirements set forth in this paragraph, the holders of a
majority in aggregate liquidation amount of the Capital Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Institutional Trustee, or exercising any trust or power
conferred upon such Institutional Trustee under the Declaration, including the
right to direct such Institutional Trustee, as holder of the Subordinated Debt
Securities, to (i) exercise the remedies available to it under the Indenture as
a holder of the Subordinated Debt Securities, (ii) waive any past default that
is waivable under the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Subordinated Debt Securities shall be
due and payable or (iv) consent on behalf of all the holders of the Capital
Securities to any amendment, modification or termination of the Indenture or the
Subordinated Debt Securities where such consent shall be required; provided,
however, that, where a consent or action under the Indenture would require the
consent or act of holders of more than a majority in principal amount of the
Subordinated Debt Securities (a "Super-Majority") affected thereby, the
Institutional Trustee may only give such consent or take such action at the
written direction of the holders of
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at least the proportion in aggregate liquidation amount of the Capital
Securities outstanding which the relevant Super-Majority represents of the
aggregate principal amount of the Subordinated Debt Securities outstanding. If
the Institutional Trustee fails to enforce its rights under the Subordinated
Debt Securities after the holders of a majority in liquidation amount of such
Capital Securities have so directed the Institutional Trustee, to the extent
permitted by law, a holder of record of the Capital Securities may institute a
legal proceeding directly against UPC to enforce the Institutional Trustee's
rights under the Subordinated Debt Securities without first instituting any
legal proceeding against the Institutional Trustee or any other person or
entity. Notwithstanding the foregoing, if a Declaration Event of Default
relating to the Capital Securities has occurred and is continuing and such event
is attributable to the failure of UPC to pay interest or principal on the
Subordinated Debt Securities on the respective dates such interest or principal
is due and payable (or in the case of redemption, the redemption date) then a
holder of record of Capital Securities may directly institute a proceeding for
enforcement of payment, on or after the respective due dates specified in the
Subordinated Debt Securities, to such holder directly of the principal of (or
premium, if any) or interest on the Subordinated Debt Securities having an
aggregate principal amount equal to the aggregate liquidation amount of the
Capital Securities of such holder. The Institutional Trustee shall notify all
holders of the Capital Securities of any default actually known to the
Institutional Trustee with respect to the Subordinated Debt Securities unless
(x) such defaults have been cured prior to the giving of such notice or (y) the
Institutional Trustee determines in good faith that the withholding of such
notice is in the interest of the holders of such Capital Securities, except
where the default relates to the payment of principal of (or premium, if any) or
interest on any of the Subordinated Debt Securities. Such notice shall state
that such Indenture Event of Default also constitutes a Declaration Event of
Default. Except with respect to directing the time, method and place of
conducting a proceeding for a remedy, the Institutional Trustee shall not take
any of the actions described in clauses (i), (ii) or (iii) above unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect that,
as a result of such action, the Trust will not be classified as other than a
grantor trust for United States federal income tax purposes.
In the event the consent of the Institutional Trustee, as the holder of the
Subordinated Debt Securities, is required under the Indenture with respect to
any amendment, modification or termination of the Indenture, such Institutional
Trustee shall request the direction of the holders of the Trust Securities with
respect to such amendment, modification or termination and shall vote with
respect to such amendment, modification or termination as directed by a majority
in liquidation amount of such Trust Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of a Super-Majority, the Institutional Trustee may only give such
consent at the direction of the holders of at least the proportion in
liquidation amount of such Trust Securities outstanding which the relevant
Super-Majority represents of the aggregate principal amount of the Subordinated
Debt Securities outstanding. The Institutional Trustee shall not take any such
action in accordance with the directions of the holders of such Trust Securities
unless the Institutional Trustee has obtained an opinion of tax counsel to the
effect that, as a result of such action, the Trust will not be classified as
other than a grantor trust for United States federal income tax purposes.
A waiver of an Indenture Event of Default will constitute a waiver of the
corresponding Declaration Event of Default.
Any required approval or direction of holders of Capital Securities may be
given at a separate meeting of such holders convened for such purpose, at a
meeting of all of the such holders of Trust Securities or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at which
holders of Capital Securities are entitled to vote, or of any matter upon which
action by written consent of such holders is to be taken, to be mailed to each
holder of record of such Capital Securities. Each such notice will include a
statement setting forth the following information: (i) the date of such meeting
or the date by which such action is to be taken; (ii) a description of any
resolution proposed for adoption at such meeting on which such holders are
entitled to vote or of such matter upon which written consent is sought; and
(iii) instructions for the delivery of proxies or consents. No vote or consent
of the holders of Capital Securities will be required for such Trust to redeem
and cancel such Capital Securities or distribute the Subordinated Debt
Securities in accordance with the Declaration.
Notwithstanding that holders of Capital Securities are entitled to vote or
consent under any of the circumstances described above, any of the Capital
Securities that are owned at such time by UPC or any entity directly or
indirectly controlling or controlled by, or under direct or indirect common
control with UPC, shall not
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entitle the holders thereof to vote or consent and shall, for purposes of such
vote or consent, be treated as if such Capital Securities were not outstanding.
The procedures by which holders of Capital Securities may exercise their
voting rights are described below. See "-- Book-Entry Only Issuance -- The
Depository Trust Company" below.
Holders of the Capital Securities to appoint or remove the Union Planters
Trustees, who may be appointed, removed or replaced solely by UPC as the holder
of all of the Common Securities.
MODIFICATION OF THE DECLARATION
The Declaration may be amended without the consent of the holders of the
Trust Securities to: (i) cure any ambiguity; (ii) correct or supplement any
provision in such Declaration that may be defective or inconsistent with any
other provision of such Declaration; (iii) add to the covenants, restrictions or
obligations of UPC; (iv) conform to any change in Rule 3a-5 under the Investment
Company Act of 1940, as amended (the "1940 Act"), or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority, which amendment does not have a
material adverse effect on the rights, preferences or privileges of the holders
of such Trust Securities; and (v) modify, eliminate and add to any provision of
such Declaration, provided, however, that no such modification, elimination or
addition shall adversely affect the powers, preferences or special rights of the
holders of such Trust Securities.
In addition, the Declaration may be modified and amended if approved by the
Regular Trustees (and in certain circumstances the Institutional Trustee and the
Delaware Trustee), provided, however, that, if any proposed amendment provides
for, or such Regular Trustees otherwise propose to effect, (i) any action that
would adversely affect the powers, preferences or special rights of the Trust
Securities, whether by way of amendment to the applicable Declaration or
otherwise or (ii) the dissolution, winding-up or termination of the Trust other
than pursuant to the terms of the Declaration, then the holders of such Trust
Securities voting together as a single class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of at least a majority in liquidation amount of such
Trust Securities affected thereby; provided, however, that if any amendment or
proposal referred to in clause (i) above would adversely affect only the Capital
Securities or the Common Securities, then only the affected class will be
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of a majority in liquidation
amount of such class of Trust Securities.
Notwithstanding the foregoing, no amendment or modification may be made to
the Declaration if such amendment or modification would (i) cause the Trust to
be classified for purposes of United States federal income taxation as other
than a grantor trust, (ii) reduce or otherwise adversely affect the powers of
the Institutional Trustee or (iii) cause the Trust to be deemed an "investment
company" which is required to be registered under the 1940 Act.
Notwithstanding any provision of the Declaration, the provisions of Section
316(b) of the Trust Indenture Act incorporated by reference into the Declaration
provides that the right of any holder of Capital Securities to receive payments
of Distributions and other payments upon redemption or otherwise on or after
their respective due dates, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such holder.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any corporation or other body, except as
described below. The Trust may, with the consent of the Regular Trustees and
without the consent of the holders of the Trust Securities, the Institutional
Trustee or the Delaware Trustee, consolidate, amalgamate, merge with or into, or
be replaced by, a trust organized as such under the laws of any State of the
United States; provided, however, that (i) if the Trust is not the survivor,
such successor entity either (x) expressly assumes all of the obligations of the
Trust under Trust Securities issued by the Trust or (y) substitutes for such
Trust Securities other securities having substantially the same terms as such
Trust Securities (the "Successor Securities"), so that the Successor
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Securities rank the same as such Trust Securities rank with respect to
Distributions and payments upon liquidation, redemption and otherwise, (ii) UPC
expressly acknowledges a trustee of such successor entity possessing the same
powers and duties as the Institutional Trustee as the holder of the Subordinated
Debt Securities, (iii) the Capital Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with another organization on
which such Capital Securities are then listed or quoted, (iv) such merger,
consolidation, amalgamation or replacement does not cause such Capital
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely affect the rights,
preferences and privileges of the holders of the Trust Securities (including any
Successor Securities) in any material respect (other than with respect to any
dilution of the holders' interest in such successor entity), (vi) such successor
entity has a purpose identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation or replacement, the Regular Trustees shall have
received an opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that (A) such merger, consolidation,
amalgamation or replacement does not adversely affect the rights, preferences
and privileges of the holders of the Trust Securities (including any Successor
Securities) in any material respect (other than with respect to any dilution of
the holders' interest in such successor entity), (B) following such merger,
consolidation, amalgamation or replacement, neither the Trust nor such successor
entity will be required to register as an investment company under the 1940 Act
and (C) following such merger, consolidation, amalgamation or replacement,
neither the Trust nor such successor entity will be classified as other than a
grantor trust for United States federal income tax purposes, and (viii) UPC
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the applicable Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
holders of 100% in liquidation amount of the Trust Securities, consolidate,
amalgamate, merge with or into, or be replaced by, any other entity or permit
any other entity to consolidate, amalgamate, merge with or into, or replace it,
if such consolidation, amalgamation, merger or replacement would cause the Trust
or the successor entity to be classified as other than a grantor trust for
United States federal income tax purposes.
BOOK-ENTRY ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
The description of book-entry procedures in this Prospectus includes
summaries of certain rules and operating procedures of The Depository Trust
Company ("DTC") that effect transfers of interests in the global certificate or
certificates issued in connection with sales of Capital Securities. Except as
described in the next paragraph, the Old Capital Securities have been, and the
New Capital Securities will be, issued only as fully registered securities
registered in the name of Cede & Co. (as nominee for DTC). One or more fully
registered global Capital Security certificates (the "Global Certificates") will
be issued, representing, in the aggregate, the New Capital Securities, and will
be deposited with DTC.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in the global Capital
Securities as represented by a Global Certificate.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Participants in DTC
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Participants and by the New York Stock Exchange, the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks and trust companies that clear
transactions through or maintain a direct or indirect
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custodial relationship with a Direct Participant, either directly or indirectly
("Indirect Participants"). The rules applicable to DTC and its Participants are
on file with the Securities and Exchange Commission.
Purchases of Capital Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Capital
Securities on DTC's records. The ownership interest of each actual purchaser of
each Capital Security ("Beneficial Owner") is in turn to be recorded on the
Direct Participants' and Indirect Participants' records. Beneficial Owners will
not receive written confirmation from DTC of their purchases, but Beneficial
Owners are expected to receive written confirmations providing details of the
transactions, as well as periodic statements of their holdings, from the Direct
or Indirect Participants through which the Beneficial Owners purchased Capital
Securities. Transfers of ownership interests in the Capital Securities are to be
accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in the Capital Securities, except in the event that
use of the book-entry system for the Capital Securities is discontinued.
To facilitate subsequent transfers, all the Capital Securities deposited by
Participants with DTC will be registered in the name of DTC's nominee, Cede &
Co. The deposit of Capital Securities with DTC and their registration in the
name of Cede & Co. will effect no change in beneficial ownership. DTC will have
no knowledge of the actual Beneficial Owners of the Capital Securities. DTC's
records will reflect only the identity of the Direct Participants to whose
accounts such Capital Securities are credited, which may or may not be the
Beneficial Owners. The Direct Participants and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
So long as DTC, or its nominee, is the registered owner or holder of a
Global Certificate in respect of the Capital Securities, DTC or such nominee, as
the case may be, will be considered the sole owner or holder of record of the
Capital Securities represented thereby for all purposes under the Declaration in
respect of such Capital Securities and such Capital Securities. No Beneficial
Owner of an interest in a Global Certificate will be able to transfer that
interest except in accordance with DTC's applicable procedures.
DTC has advised UPC that it will take any action permitted to be taken by a
holder of Capital Securities (including the presentation of Capital Securities
for exchange as described below) only at the direction of one or more
Participants to whose accounts the DTC interests in the Global Certificates are
credited and only in respect of such portion of the aggregate liquidation amount
of Capital Securities as to which such Participant or Participants has or have
given such direction. However, if there is a Declaration Event of Default with
respect to a series of the Capital Securities, DTC will, upon notice, exchange
the Global Certificates in respect of such series of Capital Securities for
certificated securities, which it will distribute to its Participants.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices in respect of a series of Capital Securities held in
book-entry form will be sent to Cede & Co. If less than all of the Capital
Securities of a series are being redeemed, DTC's practice is to determine by lot
the amount of the interest of each Direct Participant to be redeemed.
Although voting with respect to the Capital Securities is limited, in those
cases where a vote is required, neither DTC nor Cede & Co. will itself consent
or vote with respect to Capital Securities. Under its usual procedures, DTC
would mail an omnibus proxy to the Trust as soon as possible after the record
date. The omnibus proxy assigns Cede & Co.'s consenting or voting rights to
those Direct Participants to whose accounts the Capital Securities are credited
on the record date (identified in a listing attached to the omnibus proxy).
Distributions on the Capital Securities held in book-entry form will be
made to DTC in immediately available funds. DTC's practice is to credit Direct
Participants' accounts on the relevant payment date in accordance with their
respective holdings shown on DTC's records unless DTC has reason to believe that
it will not receive payments on such payment date. Payments by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
standing instructions and customary practices and will be the responsibility of
such Direct Participants and Indirect Participants and not of DTC, the Trust or
UPC, subject to
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any statutory or regulatory requirements as may be in effect from time to time.
Payment of Distributions to DTC is the responsibility of the Trust, disbursement
of such payments to Direct Participants is the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners is the responsibility of
Direct Participants and Indirect Participants.
Except as provided herein, a Beneficial Owner of an interest in a Global
Certificate will not be entitled to receive physical delivery of Capital
Securities. Accordingly, each Beneficial Owner must rely on the procedures of
DTC, the Direct Participants and the Indirect Participants to exercise any
rights under the Capital Securities.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Certificates among Participants of DTC, DTC
is under no obligation to perform or continue to perform such procedures, and
such procedures may be discontinued at any time. Neither UPC, the Trust nor the
Institutional Trustee will have any responsibility for the performance by DTC or
its Direct Participants or Indirect Participants under the rules and procedures
governing DTC. DTC may discontinue providing its services as securities
depositary with respect to the Capital Securities at any time by giving notice
to the Trust. Under such circumstances, in the event that a successor securities
depositary is not obtained, Capital Security certificates are required to be
printed and delivered. Additionally, the Trust (with the consent of UPC) may
decide to discontinue use of the system of book-entry transfers through DTC (or
a successor depositary) with respect to the Capital Securities. In that event,
certificates for such Capital Securities will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that UPC and the Trust believes to be reliable,
but neither UPC nor the Trust takes responsibility for the accuracy thereof.
PAYMENT AND PAYING AGENCY
Payments in respect of the Capital Securities represented by the Global
Certificates shall be made to DTC, which shall credit the relevant accounts at
DTC on the applicable distribution payment dates or, in the case of Certificated
Securities in non-book-entry form, such payments shall be made by check mailed
to the address of the holder entitled thereto as such address shall appear on
books and records of the Trust. The paying agent for the Trust Securities (the
"Paying Agent") shall initially be The First National Bank of Chicago. The
Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Institutional Trustee. In the event that The First National Bank
of Chicago shall no longer be the Paying Agent, the Institutional Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank or trust
company).
REGISTRAR, TRANSFER AGENT AND PAYING AGENT
The Institutional Trustee serves as registrar, transfer agent and Paying
Agent for the Capital Securities.
Registration of transfers or exchanges of Capital Securities will be
effected without charge by or on behalf of the Trust, but upon payment (with the
giving of such indemnity as the Trust or UPC may require) in respect of any tax
or other government charges which may be imposed in relation to it.
The Trust will not be required to register or cause to be registered the
transfer or exchange of Capital Securities after such Capital Securities have
been called for redemption.
RESTRICTIONS ON TRANSFER
The Capital Securities may be transferred only in blocks having a
Liquidation Amount of not less than $100,000. Any such transfer of Capital
Securities in a block having a Liquidation Amount of less than $100,000 shall be
deemed to be null and void and of no legal effect whatsoever. Any such
transferee shall not be deemed to be the holder of such Capital Securities for
any purpose, including but not limited to the receipt of Distributions on such
Capital Securities, and such transferee shall be deemed to have no interest
whatsoever in such Capital Securities.
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INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE
The Institutional Trustee, prior to the occurrence of a default with
respect to the Trust Securities and after the curing of any defaults that may
have occurred, undertakes to perform only such duties as are specifically set
forth in the Declaration and, after default, shall exercise such of the rights
and powers vested in it by such Declaration, and use the same degree of care and
skill in their exercise, as a prudent individual would exercise or use in the
conduct of his or her own affairs. Subject to such provisions, the Institutional
Trustee is under no obligation to exercise any of the powers vested in it by the
Declaration at the request of any holder of Capital Securities, unless offered
reasonable indemnity by such holder against the costs, expenses and liabilities
which might be incurred thereby. The holders of Capital Securities will not be
required to offer such indemnity in the event such holders, by exercising their
voting rights, direct the Institutional Trustee to take any action it is
empowered to take under the Declaration following a Declaration Event of
Default. The Institutional Trustee also serves as trustee under the applicable
Guarantee and the Indenture. UPC and certain of its subsidiaries conduct certain
banking transactions with the Institutional Trustee in the ordinary course of
their business.
Whenever in the exercise of its rights or powers or the performance of its
duties under the Declaration the Institutional Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy or right or taking
any other action thereunder, an Institutional Trustee (i) may request
instructions from the holders of the Capital Securities which instructions may
only be given by the holders of a majority, or such other proportion, in
liquidation amount of the Capital Securities as would be entitled to direct the
Institutional Trustee under the terms of such Capital Securities in respect of
such remedy, right or action, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in or accordance
with such instructions.
PROPOSED TAX LEGISLATION
On February 6, 1997, President Clinton proposed certain tax law changes
that would, among other things, generally deny corporate issuers a deduction for
interest in respect of certain debt obligations (the "Proposed Legislation") if
such debt obligations have a maximum term in excess of 15 years and are not
shown as indebtedness on the issuer's applicable consolidated balance sheet. As
currently drafted, the Proposed Legislation would be effective generally for
instruments issued on or after the date of first Congressional committee action.
Under current law, UPC will be able to deduct interest on the Subordinated Debt
Securities and, based upon the effective date of the Proposed Legislation as it
is currently drafted, it is expected that if the Proposed legislation were
enacted, such legislation would not apply retroactively to the Subordinated Debt
Securities. However, if the Proposed Legislation is enacted with retroactive
effect with respect to the Subordinated Debt Securities, UPC would not be
entitled to an interest deduction with respect to the Subordinated Debt
Securities. There can be no assurance, however, that the Proposed Legislation,
if enacted, will not apply retroactively to the Subordinated Debt Securities or
that other legislation enacted after the date hereof will not otherwise
adversely affect the ability of UPC to deduct the interest payable on the
Subordinated Debt Securities. Accordingly, there can be no assurance that a Tax
Event will not occur which would permit UPC to cause a redemption of the Capital
Securities. See "-- Redemption; Distribution" and "Description of the
Subordinated Debt Securities -- Proposed Tax Legislation."
GOVERNING LAW
The Declaration and the Capital Securities of the Trust are governed by,
and construed in accordance with, the laws of the State of Delaware, without
regard to principles of conflict of laws.
MISCELLANEOUS
The Regular Trustees are authorized and directed to operate the Trust in
such a way so that the Trust will not be required to register as an "investment
company" under the 1940 Act nor be characterized as other than a grantor trust
for United States federal income tax purposes. UPC is authorized and directed to
conduct its affairs so that the Subordinated Debt Securities will be treated as
indebtedness of UPC for United States federal income tax purposes. In this
connection, UPC and the Regular Trustees are authorized to take any action, not
inconsistent
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with applicable law, the Declaration or the Charter of UPC, that each of UPC and
the Regular Trustees determine in their discretion to be necessary or desirable
to achieve such end, as long as such action does not adversely affect the
interests of the holders of the Capital Securities or vary the terms thereof.
Holders of the Capital Securities have no preemptive rights.
DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the Guarantee which
has been executed and delivered by UPC for the benefit of the holders from time
to time of the Capital Securities. The First National Bank of Chicago is trustee
(the "Guarantee Trustee") under the Guarantee. The terms of the Guarantee are
those set forth in the Guarantee and those made a part of such Guarantee by the
Trust Indenture Act. This summary of the material terms of the Guarantee does
not purport to be complete and is subject in all respects to the provisions of,
and is qualified in its entirety by reference to, the Guarantee and the Trust
Indenture Act. The Guarantee is held by the Guarantee Trustee for the benefit of
the holders of the Capital Securities.
GENERAL
Pursuant to the Guarantee, UPC has irrevocably and unconditionally agreed,
to the extent set forth therein, to pay in full, to the holders of the Capital
Securities, the Guarantee Payments (as defined herein) (except to the extent
paid by the Trust), as and when due, regardless of any defense, right of set-off
or counterclaim which the Trust may have or assert. The following payments with
respect to Capital Securities, to the extent not paid by the Trust (the
"Guarantee Payments"), will be subject to the Guarantee (without duplication):
(i) any accrued and unpaid Distributions which are required to be paid on
Capital Securities, to the extent the Trust shall have funds available therefor;
(ii) the redemption price, including all accrued and unpaid Distributions to the
date of redemption (the "Redemption Price"), to the extent the Trust has funds
available therefor, with respect to any Capital Securities called for
redemption; and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust (other than in connection with the distribution of
Subordinated Debt Securities to the holders of Capital Securities upon the
redemption of all of the Capital Securities), the lesser of (a) the aggregate of
the liquidation amount and all accrued and unpaid Distributions on such Capital
Securities to the date of payment, to the extent the Trust has funds available
therefor, and (b) the amount of assets of the Trust remaining available for
distribution to holders of such Capital Securities in liquidation of the Trust.
UPC's obligation to make a Guarantee Payment may be satisfied by direct payment
of the required amounts by UPC to the holders of Capital Securities or by
causing the Trust to pay such amounts to such holders.
The Guarantee does not apply to any payment of Distributions except to the
extent the Trust shall have funds available therefor, which funds will not be
available except to the extent UPC has made payments of interest (or premium, if
any) or principal or other payments on the Subordinated Debt Securities
purchased by the Trust. See "Description of the Subordinated Debt
Securities -- Certain Covenants." The Guarantee, when taken together with UPC's
obligations under the Subordinated Debt Securities, the Declaration and the
Indenture, including its obligations to pay costs, expenses, debts and
liabilities of the Trust (other than with respect to the Trust Securities),
provides a full and unconditional guarantee on a subordinated basis by UPC of
payments due on the Capital Securities.
Because the Guarantee is a guarantee of payment and not of collection,
holders of the Capital Securities may proceed directly against UPC as guarantor,
rather than having to proceed against the Trust before attempting to collect
from UPC, and UPC waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before proceeding
against the Company. Such obligations will not be discharged except by payment
of the Guarantee Payments in full. The Old Guarantee is, and the New Guarantee
will be, deposited with the Guarantee Trustee to be held for the benefit of the
holders of Capital Securities. Except as otherwise noted herein, the Guarantee
Trustee has the right to enforce the Guarantee on behalf of the holders of the
Capital Securities.
UPC has also agreed separately to irrevocably and unconditionally guarantee
the obligations of the Trust with respect to the Common Securities of the Trust
(the "Common Securities Guarantee") to the same extent as
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the Guarantee, except that upon an event of default under the Declaration,
holders of Capital Securities of shall have priority over holders of Common
Securities with respect to Distributions and payments on liquidation, redemption
or otherwise.
CERTAIN COVENANTS OF UPC UNDER THE GUARANTEE
In the Guarantee, UPC covenants that, so long as any Capital Securities
remain outstanding, if UPC shall be in default under such Guarantee or there
shall have occurred and be continuing any event that would constitute an event
of default under the Declaration, then (a) UPC shall not declare or pay any
dividend on, make a distribution with respect to, or redeem, purchase or make a
liquidation payment with respect to, any of UPC's 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 UPC of its obligations under any employee benefit
plans, (ii) as a result of a reclassification of UPC's capital stock or rights
to acquire such capital stock or the exchange or conversion of one class or
series of UPC's capital stock or rights to acquire such capital stock for
another class or series of UPC's capital stock or rights to acquire such capital
stock, (iii) the purchase of fractional interests in shares of UPC's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchange provisions of such capital stock or the
security being converted or exchanged, (iv) dividends and distributions made on
UPC's capital stock or rights to acquire such capital stock with UPC's capital
stock or rights to acquire such capital stock, or (v) any declaration of a
dividend in connection with the implementation of UPC's Shareholder Rights Plan
or the redemption or repurchase of any such rights pursuant thereto), or make
any guarantee payments with respect to the foregoing and (b) UPC shall not make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by UPC that rank pari passu with or junior
to the Subordinated Debt Securities.
MODIFICATION OF THE GUARANTEE; ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Capital Securities in any material respect (in which case no vote
of such holders will be required), the Guarantee may be amended only with the
prior approval of the holders of not less than a majority in liquidation amount
of the outstanding Capital Securities. All guarantees and agreements contained
in a Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of UPC and shall inure to the benefit of the holders of the
Capital Securities then outstanding.
TERMINATION
The Guarantee will terminate as to the Capital Securities (a) upon full
payment of the Redemption Price of all Capital Securities, (b) upon distribution
of the Subordinated Debt Securities held by the Trust to the holders of the
Capital Securities or (c) upon full payment of the amounts payable in accordance
with the Declaration upon liquidation of the Trust. The Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
holder of Capital Securities must restore payment of any sums paid under such
Capital Securities or Guarantee.
EVENTS OF DEFAULT
An event of default under a Guarantee in respect of the Trust will occur
upon the failure of UPC to perform any of its payment or other obligations
thereunder.
The holders of a majority in liquidation amount of the Capital Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of the Guarantee of
such Capital Securities or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under such Guarantee. A holder of record of
such Capital Securities may institute a legal proceeding directly against UPC to
enforce the Guarantee Trustee's rights under such Guarantee without first
instituting a legal proceeding against the Trust, the Guarantee Trustee or any
other person or entity. Pursuant to the Guarantee, UPC will waive any right or
remedy to require that any action be brought first against the Trust or any
other person or entity before proceeding directly against UPC.
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STATUS OF THE GUARANTEE
UPC's obligations under the Guarantee are subordinate and junior in right
of payment to all present and future Senior Indebtedness (as defined) of UPC and
are also effectively subordinated to claims of creditors of UPC's subsidiaries.
The terms of the Capital Securities provide that each holder of Capital
Securities, by acceptance thereof, agrees to the subordination provisions and
other terms of the Guarantee relating thereto. Because UPC is a holding company,
the right of UPC to participate in any distribution of assets of any subsidiary
upon such subsidiary's liquidation or reorganization or otherwise is subject to
the prior claims of creditors of that subsidiary, except to the extent UPC may
itself be recognized as a creditor of that subsidiary. Accordingly, UPC's
obligations under the Guarantee will be effectively subordinated to all existing
and future liabilities of UPC's subsidiaries, and claimants should look only to
the assets of UPC for payments thereunder. See "Union Planters Corporation." The
Guarantee does not limit the incurrence or issuance of other secured or
unsecured debt of UPC, including Senior Indebtedness, whether under the
Indenture, any other indenture that UPC may enter into in the future or
otherwise.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default with respect to
the Guarantee, undertakes to perform only such duties as are specifically set
forth in such Guarantee and, after default, shall exercise such of the rights
and powers vested in it by such Guarantee, and use the same degree of care and
skill in their exercise, as a prudent individual would exercise or use in the
conduct of his or her own affairs. Subject to such provisions, the Guarantee
Trustee is under no obligation to exercise any of the powers vested in it by the
Guarantee at the request of any holder of Capital Securities, unless offered
reasonable indemnity against the costs, expenses and liabilities which might be
incurred thereby.
UPC and certain of its affiliates maintain a banking relationship with the
Guarantee Trustee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of New York, without regard to conflict of laws principles.
DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
Set forth below is a description of the principal terms of the Subordinated
Debt Securities. The following description does not purport to be complete and
is subject to, and is qualified in its entirety by reference to, the description
in the Indenture dated as of December 12, 1996 (the "Base Indenture"), among UPC
and The First National Bank of Chicago, as trustee (the "Debt Trustee"), as
supplemented by a First Supplemental Indenture dated as of December 12, 1996
(the Base Indenture, as so supplemented, is herein referred to as the
"Indenture".) Certain capitalized terms used herein are defined in the
Indenture. The terms of the Indenture are those set forth in the Indenture and
those made part thereof by the Trust Indenture Act. The Indenture, by its terms,
requires UPC and the Debt Trustee to comply with the Trust Indenture Act. This
summary of the material terms of the Indenture does not purport to be complete
and is subject in all respects to the provisions of, and is qualified in its
entirety by reference to, the Indenture and the Trust Indenture Act.
Under certain circumstances involving the dissolution of the Trust
following the occurrence of a Tax Event, Subordinated Debt Securities may be
distributed to the holders of the Trust Securities in liquidation of the Trust.
See "Description of the Capital Securities -- Tax Event Redemption."
GENERAL
Concurrently with the issuance of the Old Capital Securities, the Trust
invested the proceeds thereof, together with the consideration paid by UPC for
the Common Securities, in the Old Subordinated Debt Securities issued by UPC.
The Old Subordinated Debt Securities were, and the New Subordinated Debt
Securities exchanged for the Old Subordinated Debt Securities under the Exchange
Offer will be, issued as unsecured debt
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under the Indenture. Subordinated Debt Securities will be limited to such amount
being the sum of the aggregate stated liquidation amounts of the Trust
Securities.
The Subordinated Debt Securities are not subject to a sinking fund
provision. The entire principal amount of the Subordinated Debt Securities will
mature and become due and payable, together with any accrued and unpaid interest
thereon including Compounded Interest (as defined herein) and Additional
Interest (as defined herein), if any, on December 15, 2026.
If the Subordinated Debt Securities are distributed to holders of Capital
Securities in liquidation of such holders' interests in Trust, the Subordinated
Debt Securities will, with respect to Capital Securities held in book-entry
form, initially be issued as a Global Security (as defined herein) having an
aggregate principal amount equal to the liquidation amount of such Capital
Securities and, with respect to such Capital Securities held in Certificated
non-book entry form, will initially be deemed to be represented by such
certificates and to have an aggregate principal amount equal to the liquidation
amount of such Capital Securities. As described herein, under certain limited
circumstances, Subordinated Debt Securities may be issued in certificated
non-book entry form in exchange for a Global Security. See "-- Book-Entry and
Settlement" below. Subordinated Debt Securities deemed to be represented by a
Capital Security certificate will be issued in certificate form upon
presentation for transfer or reissuance. In the event that Subordinated Debt
Securities are issued in certificated non-book entry form, such Subordinated
Debt Securities will be in denominations of $1,000 and integral multiples
thereof and may be transferred or exchanged at the offices described below.
Payments on Subordinated Debt Securities issued as a Global Security will be
made to DTC, a successor depositary or, in the event that no depositary is used,
to a paying agent for the Subordinated Debt Securities. In the event
Subordinated Debt Securities are issued in certificated non-book entry form,
interest, principal (and premium, if any) will be payable, the transfer of the
Subordinated Debt Securities will be registrable and Subordinated Debt
Securities will be exchangeable for Subordinated Debt Securities of other
denominations of a like aggregate principal amount at the corporate trust office
of the Debt Trustee in New York, New York; provided, however, that payment of
interest may be made at the option of UPC by check mailed to the address of the
holder entitled thereto or by wire transfer to an account appropriately
designated by the holder entitled thereto. Notwithstanding the foregoing, so
long as the holder of any Subordinated Debt Securities is the Institutional
Trustee, the payment of principal (and premium, if any) and interest on the
Subordinated Debt Securities held by such Institutional Trustee will be made at
such place and to such account as may be designated by such Institutional
Trustee.
The Indenture does not contain provisions that afford holders of the
Subordinated Debt Securities protection in the event of a highly leveraged
transaction or other similar transaction involving UPC that may adversely affect
such holders.
SUBORDINATION
The Indenture provides that the Subordinated Debt Securities are
subordinated and junior in right of payment to all Senior Indebtedness of UPC.
No payment of principal (including redemption payments), premium, if any, or
interest on the Subordinated Debt Securities may be made if (i) any Senior
Indebtedness of UPC is not paid when due and any applicable grace period with
respect to a payment default under such Senior Indebtedness has ended and such
default has not been cured or waived or ceased to exist or (ii) the maturity of
any Senior Indebtedness of UPC has been accelerated because of a default. Upon
any distribution of assets of UPC to creditors upon any dissolution, winding-up,
liquidation or reorganization, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all principal,
premium, if any, and interest due or to become due on all Senior Indebtedness of
UPC must be paid in full before the holders of Subordinated Debt Securities are
entitled to receive or retain any payment. Upon satisfaction of all claims of
all Senior Indebtedness then outstanding, the rights of the holders of the
Subordinated Debt Securities will be subrogated to the rights of the holders of
Senior Indebtedness of UPC to receive payments or distributions applicable to
Senior Indebtedness until all amounts owing on the Subordinated Debt Securities
are paid in full.
The term "Senior Indebtedness" means, with respect to UPC (i) the
principal, premium, if any, and interest in respect of (a) indebtedness of such
obligor for money borrowed and (b) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor, (ii) all
capital lease obligations of such
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obligor, (iii) all obligations of such obligor issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such obligor and
all obligations of such obligor under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business),
(iv) all obligations of such obligor for the reimbursement on 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 such obligor 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 such obligor (whether or not such
obligation is assumed by such obligor), except for (1) any indebtedness between
or among UPC or any affiliate of UPC and (2) any other debt securities issued
pursuant to the Indenture and guarantees in respect of those debt securities.
Such Senior Indebtedness shall continue to be Senior Indebtedness and shall be
entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of such Senior Indebtedness.
UPC is legal entity separate and distinct from its Banking Subsidiaries and
non-banking affiliates. UPC's principal assets are the stock of its Banking
Subsidiaries and non-banking subsidiaries. UPC relies primarily on dividends
from such subsidiaries to meet its obligations for payment of principal and
interest on its outstanding debt obligations and corporate expenses. The
principal sources of UPC's income are dividends, interest and fees from the
banking and non-banking affiliates. The Banking Subsidiaries of UPC are subject
to certain restrictions imposed by federal law on any extensions of credit to,
and certain other transactions with, UPC and certain other affiliates and on
investments in stock or other securities thereof. In addition, payment of
dividends to UPC by the Banking Subsidiaries is subject to ongoing review by
banking regulators and is subject to various statutory limitations and in
certain circumstances requires approval by banking regulatory authorities.
Accordingly, the Subordinated Debt Securities will be effectively subordinated
to all existing and future liabilities of UPC's subsidiaries.
The Indenture does not limit the aggregate amount of Senior Indebtedness
that may be issued by UPC. UPC had approximately $174.5 million of Senior
Indebtedness as of December 31, 1996 (excluding the Subordinated Debt
Securities).
REDEMPTION
UPC may redeem the Subordinated Debt Securities, in whole or in part, at
any time and from time to time, on or after December 15, 2006 upon not less than
30 nor more than 60 days' notice, at the price (described under "Description of
The Capital Securities -- Redemption," plus accrued and unpaid interest to the
redemption date.
In addition, Subordinated Debt Securities may be redeemed by UPC at any
time in certain circumstances upon the occurrence of a Tax Event as described
under "Description of the Capital Securities -- Tax Event Redemption," upon not
less than 30 nor more than 60 days' notice, at a redemption price equal to 100%
of the principal amount to be redeemed plus any accrued and unpaid interest to
the redemption date. In each case, redemption prior to maturity is subject to
UPC having received prior approval of the Federal Reserve to do so if then
required under applicable capital guidelines or policies of the Federal Reserve.
INTEREST
Subordinated Debt Securities shall bear interest at the rate of 8.20% per
annum, from the original date of issuance, payable semiannually in arrears on
June 15 and December 15 of each year (each an "Interest Payment Date"),
commencing June 15, 1997, to the person in whose name such Subordinated Debt
Security is registered, subject to certain exceptions, at the close of business
on the Business Day next preceding such Interest Payment Date. The term
"interest" as used herein, as such term relates to the Subordinated Debt
Securities, includes any Compounded Interest, Additional Interest or Special
Payment payable unless otherwise stated. In the event the Subordinated Debt
Securities are not held solely in book-entry only form, UPC shall select
relevant record dates, which shall be 15 days prior to the relevant Interest
Payment Date.
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The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. The amount of interest payable for
any period shorter than a full semiannual period for which interest is computed
will be computed on the basis of the actual number of days elapsed per 30-day
month. In the event that any date on which interest is payable on the
Subordinated Debt Securities is not a Business Day, then payment of the interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay)
with the same force and effect as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as UPC is not in default in the payment of interest that has become
due and payable on the Subordinated Debt Securities and no accrued interest from
a prior completed extension period is unpaid, UPC shall have the right to defer
payments of interest on the Subordinated Debt Securities by extending the
interest payment period, at any time and from time to time, for Extension
Periods, each not exceeding 10 consecutive semiannual periods, and on the date
on which each such Extension Period ends, or, if such date is not an Interest
Payment Date, on the immediately following Interest Payment Date, UPC shall pay
all interest then accrued and unpaid, together with interest thereon compounded
semiannually at the rate specified for the Subordinated Debt Securities, to the
extent permitted by applicable law ("Compounded Interest"); provided, however,
that during any Extension Period (a) UPC shall not declare or pay dividends on,
make any 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 UPC of its obligations under any employee benefit
plans, (ii) as a result of a reclassification of UPC's capital stock or rights
to acquire such capital stock or the exchange or conversion of one class or
series of UPC's capital stock or rights to acquire such capital stock for
another class or series of UPC's capital stock or rights to acquire such capital
stock, (iii) the purchase of fractional interests in shares of UPC'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 UPC's capital stock or rights to acquire such capital stock with UPC's
capital stock or rights to acquire such capital stock, or, (v) any declaration
of a dividend in connection with the implementation of UPC's Shareholder Rights
Plan, or the redemption or repurchase of any such rights pursuant thereto), or
make any guarantee payments with respect to the foregoing and (b) UPC shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by UPC that rank pari passu with
or junior to the Subordinated Debt Securities. Prior to the termination of any
such Extension Period, UPC may further defer payments of interest by extending
the interest payment period; provided further, however, that each such Extension
Period, including all such previous and further extensions, may not exceed 10
consecutive semiannual periods or extend beyond the maturity of the Subordinated
Debt Securities. Upon the termination of any Extension Period and the payment of
all amounts then due, UPC may commence a new Extension Period, subject to the
terms set forth in this section. No interest during an Extension Period, except
on the date on which such Extension Period terminates, (or if such date is not
an Interest Payment Date, on the immediately following Interest Payment Date)
shall be due and payable. UPC has no present intention of exercising its right
to defer payments of interest on the Subordinated Debt Securities.
If the Institutional Trustee shall be the sole holder of the Subordinated
Debt Securities, UPC shall give the Regular Trustees, the Institutional Trustee
and the Debt Trustee notice of its initiation of any Extension Period one
Business Day prior to the earlier of (i) the date Distributions on the Capital
Securities are payable or (ii) the date the Regular Trustees are required to
give notice to holders of the Capital Securities (or any national securities
exchange or other organization on which the Capital Securities are listed, if
any) of the record date or the distribution payment date, in each case with
respect to distributions on the Trust Securities the payment of which is being
deferred. The Regular Trustees shall give notice of UPC's initiation of any
Extension Period to the holders of such Capital Securities. If the Institutional
Trustee shall not be the sole holder of the Subordinated Debt Securities, UPC
shall give the holders of such Subordinated Debt Securities notice of its
initiation of such Extension Period at least 10 Business Days prior to the
earlier of (i) the next succeeding Interest Payment Date or (ii) the date upon
which UPC is required to give notice to holders of such Subordinated Debt
Securities (or any national securities exchange or other organization on which
the corresponding Capital Securities are listed, if any)
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of the record date or Interest Payment Date, in each case with respect to
interest payments the payment of which is being deferred.
ADDITIONAL INTEREST
If at any time the Trust shall be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States or any other taxing authority, then, in any
such case, UPC will pay as additional interest ("Additional Interest") on the
Subordinated Debt Securities held by the Institutional Trustee such additional
amounts as shall be required so that the net amounts received and retained by
the Trust after paying any such taxes, duties, assessments or other governmental
charges will equal the amounts the Trust and the Institutional Trustee would
have received had no such taxes, duties, assessments or other governmental
charges been imposed.
PROPOSED TAX LEGISLATION
On February 6, 1997, President Clinton proposed certain tax law changes
that would, among other things, generally deny corporate issuers a deduction for
interest in respect of certain debt obligations (the "Proposed Legislation") if
such debt obligations have a maximum term in excess of 15 years and are not
shown as indebtedness on the issuer's applicable consolidated balance sheet. As
currently drafted, the Proposed Legislation would be effective generally for
instruments issued on or after the date of first Congressional committee action.
Under current law, UPC will be able to deduct interest on the Subordinated Debt
Securities and, based upon the effective date of the Proposed Legislation as it
is currently drafted, it is expected that if the Proposed legislation were
enacted, such legislation would not apply retroactively to the Subordinated Debt
Securities. However, if the Proposed Legislation is enacted with retroactive
effect with respect to the Subordinated Debt Securities, UPC would not be
entitled to an interest deduction with respect to the Subordinated Debt
Securities. There can be no assurance, however, that the Proposed Legislation,
if enacted, will not apply retroactively to the Subordinated Debt Securities or
that other legislation enacted after the date hereof will not otherwise
adversely affect the ability of UPC to deduct the interest payable on the
Subordinated Debt Securities. Accordingly, there can be no assurance that a Tax
Event will not occur which would permit UPC to cause a redemption of the Capital
Securities. See "-- Redemption; Distribution" and "Description of the
Subordinated Debt Securities -- Proposed Tax Legislation."
CERTAIN COVENANTS
If (i) there shall have occurred and be continuing any event that would
constitute an Event of Default (as defined herein), (ii) UPC shall be in default
with respect to its payment of any obligations under the Guarantee or Common
Securities Guarantee (as defined in the Indenture), or (iii) UPC shall have
given notice of its election to defer payments of interest on the Subordinated
Debt Securities by extending the interest payment period as provided in the
Indenture and such period, or any extension thereof, shall be continuing, then
(a) UPC shall not declare or pay any dividend on, make a distribution with
respect to, or redeem, purchase 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 UPC of its
obligations under any employee benefit plans, (ii) as a result of a
reclassification of UPC's capital stock or rights to acquire such capital stock
or the exchange or conversion of one class or series of UPC's capital stock or
rights to acquire such capital stock for another class or series of UPC's
capital stock or rights to acquire such capital stock, (iii) the purchase of
fractional interests in shares of UPC's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, (iv) any declaration of a dividend in connection with the
implementation of UPC's Shareholder Rights Plan, or the redemption or repurchase
of any such rights pursuant thereto, or (v) dividends and distributions made on
UPC's capital stock or rights to acquire such capital stock with UPC's capital
stock or rights to acquire such capital stock), or make guarantee payments with
respect to the foregoing and (b) UPC shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by UPC that rank pari passu with or junior to such
Subordinated Debt Securities.
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For so long as such Trust Securities remain outstanding, UPC covenants (i)
to maintain 100% ownership of the Common Securities; provided, however, that any
permitted successor of UPC under the Indenture may succeed to UPC's ownership of
such Common Securities, (ii) to use its reasonable efforts to cause the Trust
(a) to remain a statutory business trust, except in connection with the
distribution of Subordinated Debt Securities to the holders of Trust Securities
in liquidation of the Trust, the redemption of all of the Trust Securities of
the Trust or certain mergers, consolidations or amalgamations, each as permitted
by the Declaration, and (b) to otherwise continue to be classified as a grantor
trust for United States federal income tax purposes and (iii) to use its
reasonable efforts to cause each holder of Trust Securities to be treated as
owning an undivided beneficial interest in the Subordinated Debt Securities
issued to the Trust.
LIMITATION ON MERGERS AND SALES OF ASSETS
Nothing contained in the Indenture or in the Subordinated Debt Securities
shall prevent any consolidation or merger of UPC with or into any other
corporation (whether or not affiliated with UPC) or successive consolidations or
mergers in which UPC or its successor or successors shall be a party, or shall
prevent any sale, conveyance, transfer or other disposition of the property of
UPC or its successor or successors as an entirety, or substantially as an
entirety, to any other corporation (whether or not affiliated with UPC or its
successor or successors) authorized to acquire and operate the same; provided,
however, UPC shall, upon any such consolidation, merger, sale, conveyance,
transfer or other disposition, cause the obligations of UPC under the
Subordinated Debt Securities and under the Indenture to be expressly assumed, by
supplemental indenture satisfactory in form to the Debt Trustee and executed and
delivered to the Debt Trustee, by the successor entity formed by such
consolidation or into which UPC shall have been merged, or which shall have
acquired such property. Upon execution and delivery of such supplemental
indenture to the Debt Trustee, such successor entity will be substituted under
the Indenture and thereupon UPC will be relieved of any further liability or
obligation thereunder.
EVENTS OF DEFAULT, WAIVER AND NOTICE
The Indenture provides that any one or more of the following described
events which has occurred and is continuing with respect to the Subordinated
Debt Securities constitutes an "Event of Default" with respect to the
Subordinated Debt Securities:
(a) default for 30 days in payment of any interest on the Subordinated
Debt Securities, including any Compounded Interest, Additional Interest or
Special Payment in respect thereof, when due; provided, however, that a
valid extension of the interest payment period by UPC shall not constitute
a default in the payment of interest for this purpose; or
(b) default in payment of principal and premium, if any, on the
Subordinated Debt Securities when due either at maturity, upon redemption,
by declaration or otherwise; provided, however, that a valid extension of
the maturity of such Subordinated Debt Securities shall not constitute a
default for this purpose; or
(c) default resulting in acceleration of other indebtedness of UPC for
borrowed money where the aggregate principal amount so accelerated exceeds
$25 million and such acceleration is not rescinded or annulled within 30
days after the written notice thereof to UPC by the Trustee or to UPC and
the Trustee by the holders of 25% in aggregate principal amount of the
Subordinated Debt Securities then outstanding; or
(d) default by UPC in the performance of any other of the covenants or
agreements in the Indenture which shall not have been remedied for a period
of 90 days after notice; or
(e) certain events of bankruptcy, insolvency or reorganization of UPC;
or
(f) as to Subordinated Debt Securities issued to the Trust, the
voluntary or involuntary dissolution, winding-up or termination of the
Trust, except in connection with the distribution of Subordinated Debt
Securities to the holders of Trust Securities in liquidation of the Trust,
the redemption of all of the Trust Securities of the Trust, or certain
mergers, consolidations or amalgamations, each as permitted by the
Declaration.
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The Indenture provides that the Debt Trustee may, under certain
circumstances, withhold from the holders notice of default with respect to the
Subordinated Debt Securities (except for any default in payment of principal of
or interest or premium on the Subordinated Debt Securities) if the Debt Trustee
considers it in the interest of such holders to do so.
The Indenture provides that if an Event of Default on the Subordinated Debt
Securities shall have occurred and be continuing, either the Debt Trustee or the
holders of not less than 25% in aggregate principal amount of the Subordinated
Debt Securities then outstanding may declare the principal of and accrued
interest on all Subordinated Debt Securities to be due and payable immediately,
but upon certain conditions such declarations may be annulled and past defaults
may be waived (except defaults in payment of principal of, or interest or
premium on, the Subordinated Debt Securities, which must be cured or paid in
full) by the holders of a majority in aggregate principal amount of the
Subordinated Debt Securities then outstanding.
No holder of any Subordinated Debt Security shall have any right to
institute any suit, action or proceeding for any remedy under the Indenture,
unless such holder previously shall have given to the Debt Trustee written
notice of a continuing Event of Default with respect to the Subordinated Debt
Securities and unless the holders of not less than 25% in aggregate principal
amount of the Subordinated Debt Securities then outstanding shall have given the
Debt Trustee a written request to institute such action, suit or proceeding and
shall have offered to the Debt Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred thereby, and
the Debt 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, however, that no holder of Subordinated Debt Securities shall have any
right to prejudice the rights of any other holder of Subordinated Debt
Securities, obtain priority or preference over any other such holder or enforce
any right under the Indenture except as provided in the Indenture and for the
equal, ratable and common benefit of all holders of Subordinated Debt
Securities. Notwithstanding the foregoing, the right of any holder of any
Subordinated Debt Security to receive payment of the principal of, premium, if
any, and interest, if any, on such Subordinated 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.
The holders of a majority in aggregate principal amount of the Subordinated
Debt Securities then outstanding shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to, or
exercising any trust or power conferred on, the Debt Trustee under the
Indenture; provided, however, that, except under certain circumstances, the Debt
Trustee may decline to follow any such direction if the Debt Trustee determines
that the action so directed would be unjustly prejudicial to holders not taking
part in such direction, or unlawful, or would involve the Debt Trustee in
personal liability. The Indenture requires the annual filing by UPC with the
Debt Trustee of a certificate as to the absence of certain defaults under the
Indenture.
An Event of Default under the Indenture also constitutes a Declaration
Event of Default. The holders of Capital Securities in certain circumstances
have the right to direct the Institutional Trustee to exercise its rights as the
holder of the Subordinated Debt Securities. See "Description of the Capital
Securities -- Declaration Events of Default" and "-- Voting Rights."
Notwithstanding the foregoing, if an Indenture Event of Default has occurred and
is continuing and such event is attributable to the failure of UPC to pay
interest or principal (or premium, if any) on the Subordinated Debt Securities
on the respective dates such interest or principal (or premium, if any) is
payable (or in the case of redemption, on the redemption date), UPC acknowledges
that a holder of record of Capital Securities may institute a Direct Action for
payment, on or after the respective due dates specified in such Subordinated
Debt Securities, to such holder directly of the principal of (or premium, if
any) or interest on Subordinated Debt Securities having an aggregate principal
amount equal to the aggregate liquidation amount of the Capital Securities of
such holder. Notwithstanding any payments made to such holder of Capital
Securities by UPC in connection with a Direct Action, UPC shall remain obligated
to pay the principal of (or premium, if any) or interest on the Subordinated
Debt Securities held by the Trust or the Institutional Trustee, and UPC shall be
subrogated to the rights of such holder of such Capital Securities under the
Declaration to the extent of any payments made by UPC to such holder in any
Direct Action; provided, however, that no such subrogation right may be
exercised so long as a Declaration Event of Default has occurred and is
continuing. Except to the extent described above under "Description of the
Capital Securities -- Declaration Events of
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Default -- and "-- Voting Rights," the holders of Capital Securities will not be
able to exercise directly any other remedy available to the holders of the
Subordinated Debt Securities.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting UPC and the Debt Trustee, with
the consent of the holders of not less than a majority in principal amount of
the Subordinated Debt Securities of all series affected (voting as one class) at
the time outstanding, to modify the Indenture or any supplemental indenture or
the rights of the holders of the Subordinated Debt Securities; provided,
however, that no such modification shall, without the consent of the holder of
each Subordinated Debt Security so affected (i) extend the fixed maturity of any
Subordinated Debt Security, or reduce the principal amount thereof or any
redemption premium thereon, or reduce the rate or extend the time of payment of
interest thereon, or make the principal of, or interest or premium on, the
Subordinated Debt Securities payable in any coin or currency other than that
provided in the Subordinated Debt Securities, or impair or affect the right of
any holder of Subordinated Debt Securities to institute suit for the payment
thereof, or (ii) reduce the aforesaid percentage of Subordinated Debt Securities
the consent of the holders of which is required for any such modification.
UPC and the Debt Trustee may enter into supplemental indentures, without
the consent of any holder of the Subordinated Debt Securities: (i) to evidence
the succession of another corporation to UPC and the assumption by the successor
corporation of the covenants, agreements and obligations of UPC pursuant to the
Indenture; (ii) to add to the covenants of UPC such further covenants,
restrictions or conditions for the protection of the holders of the Subordinated
Debt Securities and to make the occurrence, or the occurrence and continuance
(including any or no grace periods), of a default in any of such additional
covenants, restrictions or conditions a default or an Event of Default
permitting the enforcement of remedies provided in the Indenture; (iii) to cure
any ambiguity or to correct or supplement any provision contained in the
Indenture or in any supplemental indenture which may be defective or
inconsistent with any other provision contained therein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under the Indenture; provided, however, that any such action shall not
adversely affect the interests of the holders of the Subordinated Debt
Securities; (iv) to add to, delete from, or revise the terms of the Subordinated
Debt Securities to provide for transfer procedures and restrictions
substantially similar to those applicable to the Capital Securities (for
purposes of assuring that no registration of Subordinated Debt Securities is
required under the Securities Act); (v) to evidence and provide for the
acceptance of appointment under the Indenture by a successor Debt Trustee with
respect to the Subordinated Debt Securities and to add to or change any of the
provisions of the Indenture as shall be necessary to provide for or facilitate
the administration of the Trust under the Indenture by more than one Debt
Trustee, pursuant to the Indenture; (vi) to make any change that does not
adversely affect the rights of any holder of any Subordinated Debt Security in
any material respect; or (vii) to provide for the issuance, and establish the
form and terms and conditions of the Subordinated Debt Securities, to establish
the form of any certifications required to be furnished pursuant to the terms of
the Indenture or the Subordinated Debt Securities or to add to the rights of the
holders of the Subordinated Debt Securities.
THE DEBT TRUSTEE
UPC may have normal banking relationships with the Debt Trustee in the
ordinary course of business.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Capital Securities in connection with the
involuntary or voluntary dissolution, winding-up or liquidation of the Trust as
a result of the occurrence of a Tax Event, the Subordinated Debt Securities will
with respect to such Capital Securities held in book-entry form, initially be
issued in the form of one or more global certificates (each a "Global Security")
registered in the name of the Depositary or its nominee. Except under the
limited circumstances described below, Subordinated Debt Securities represented
by a Global Security will not be exchangeable for, and will not otherwise be
issuable as, Subordinated Debt Securities in definitive form. The Global
Securities described above may not be transferred except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or to a successor depositary or its nominee.
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The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to transfer beneficial interests in such a Global
Security.
Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to receive physical delivery of Subordinated Debt
Securities in definitive form and will not be considered the holders (as defined
in the Indenture) thereof for any purpose under the Indenture, and no Global
Security representing Subordinated Debt Securities shall be exchangeable, except
for another Global Security of like denomination and tenor to be registered in
the name of the Depositary or its nominee or to a successor Depositary or its
nominee. Accordingly, each Beneficial Owner must rely on the procedures of the
Depositary, or if such person is not a Participant, on the procedures of the
Participant through which such person owns its interest to exercise any rights
of a holder under the Indenture.
THE DEPOSITARY
If Subordinated Debt Securities are distributed to holders of Capital
Securities in liquidation of such holders' interests in the Trust, DTC will act
as securities Depositary for the Subordinated Debt Securities issued by the
Trust. For a description of DTC and the specific terms of the depositary
arrangements, see "Description of the Capital Securities -- Book-Entry Only
Issuance -- The Depository Trust Company." As of the date of this Prospectus,
the description herein of DTC's book-entry system and DTC's practices as they
relate to purchases, transfers, notices and payments with respect to the Capital
Securities apply in all material respects to any debt obligations represented by
one or more Global Securities held by DTC. UPC may appoint a successor to DTC or
any successor depositary in the event DTC or such successor depositary is unable
or unwilling to continue as the Depositary for the Global Securities.
None of UPC, the Trust, the Institutional Trustee any paying agent and any
other agent of UPC, or the Debt Trustee will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security for the Subordinated Debt
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
DISCONTINUANCE OF THE DEPOSITARY'S SERVICES
A Global Security shall be exchangeable for Subordinated Debt Securities
registered in the names of persons other than the Depositary or its nominee only
if (i) the Depositary notifies UPC that it is unwilling or unable to continue as
a depositary for such Global Security and no successor depositary shall have
been appointed, (ii) the Depositary, at any time, ceases to be a clearing agency
registered under the Exchange Act at which time the Depositary is required to be
so registered to act as such depositary and no successor depositary shall have
been appointed, (iii) UPC, in its sole discretion, determines that such Global
Security shall be so exchangeable or (iv) there shall have occurred an Indenture
Event of Default. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Subordinated Debt Securities
registered in such names as the Depositary shall direct. It is expected that
such instructions will be based upon directions received by the Depositary from
its Participants with respect to ownership of beneficial interests in such
Global Security.
RESTRICTIONS ON TRANSFER
The Subordinated Debt Securities will be issued and may be transferred only
in blocks having a Liquidation Amount of not less than $100,000. Any such
transfer of Subordinated Debt Securities in a block having a Liquidation Amount
of less than $100,000 shall be deemed to be null and void and of no legal effect
whatsoever. Any such transferee shall not be deemed to be the holder of such
Subordinated Debt Securities for any purpose, including but not limited to the
receipt of payments on such Subordinated Debt Securities, and such transferee
shall be deemed to have no interest whatsoever in such Subordinated Debt
Securities.
GOVERNING LAW
The Indenture and the Subordinated Debt Securities are governed by, and
will be construed in accordance with, the laws of the State of New York, without
regard to conflict of laws principles.
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MISCELLANEOUS
The Indenture provides that UPC will pay all fees and expenses related to
(i) the offering and sale of the Trust Securities and the Subordinated Debt
Securities, (ii) the organization, maintenance and dissolution of the Trust,
(iii) the retention of the Union Planters Trustees and (iv) the enforcement by
the Institutional Trustee of the rights of the holders of the Capital
Securities.
UPC will have the right at all times to assign any of its respective rights
or obligations under the Indenture to a direct or indirect wholly owned
subsidiary of UPC; provided, however, that in the event of any such assignment,
UPC will remain liable for all of its respective obligations. Subject to the
foregoing, the Indenture will be binding upon and inure to the benefit of the
parties thereto and their respective successors and assigns. The Indenture
provides that it may not otherwise be assigned by the parties thereto.
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EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED DEBT
SECURITIES AND THE GUARANTEE
As set forth in the Declaration, the sole purpose of the Trust is to issue
and sell the Trust Securities evidencing undivided beneficial interests in the
assets of the Trust, and to invest the proceeds from such issuance and sale in
the Subordinated Debt Securities issued by UPC.
As long as payments of interest and other payments are made when due on the
Subordinated Debt Securities, such payments will be sufficient to cover
distributions and payments due on the Trust Securities because of the following
factors: (i) the aggregate principal amount of Subordinated Debt Securities will
be equal to the aggregate stated liquidation amount of the Trust Securities;
(ii) the interest rate and the interest and other payment dates on the
Subordinated Debt Securities will match the distribution rate and distribution
and other payment dates for such Capital Securities; (iii) UPC shall pay all,
and the Trust shall not be obligated to pay directly or indirectly any, costs,
expenses, debt, and obligations of the Trust (other than with respect to such
Trust Securities); and (iv) the Declaration further provides that the Trustees
of the Trust shall not take or cause or permit the Trust to, among other things,
engage in any activity that is not consistent with the purposes of the Trust.
Payments of Distributions (to the extent funds therefor are available to
the Trust) and other payments due on the Capital Securities (to the extent funds
therefor are available to the Trust) are guaranteed by UPC as described under
"Description of the Guarantee." If UPC does not make interest payments on the
Subordinated Debt Securities, it is expected that the Trust will not have
sufficient funds to pay Distributions on the Capital Securities. The Guarantee
will not apply to any payment of Distributions except to the extent that Trust
has funds available for the payment of such Distributions. The Guarantee will
cover the payment of Distributions and other payments on the Capital Securities
only if and to the extent that UPC has made payments of interest or principal
(or premium, if any) on the Subordinated Debt Securities held by the Trust as
its sole assets. The Guarantee, when taken together with UPC's obligations under
the Subordinated Debt Securities and the Indenture, including its obligations to
pay costs, expenses, debts and liabilities of the Trust (other than with respect
to the Trust Securities), the Indenture and the Declaration, provide a full and
unconditional guarantee on a subordinated basis by UPC of amounts when due on
the Capital Securities issued by the Trust.
If UPC fails to make interest or other payments on the Subordinated Debt
Securities when due (after giving effect to any extension period), the
Declaration provides a mechanism whereby the holders of the Capital Securities,
using the procedures described herein under "Description of the Capital
Securities -- Book-Entry Only Issuance -- The Depository Trust Company" and
"-- Voting Rights," may direct the Institutional Trustee, to the fullest extent
permitted by law, to enforce its rights under the Subordinated Debt Securities.
If the Institutional Trustee fails to enforce its rights under the Subordinated
Debt Securities after a majority in liquidation amount of Capital Securities
have so directed the Institutional Trustee, a holder of record of the Capital
Securities may institute a legal proceeding against UPC to enforce the
Institutional Trustee's rights under the Subordinated Debt Securities without
first instituting any legal proceedings against the Institutional Trustee or any
other person or entity. Notwithstanding the foregoing, if a Declaration Event of
Default has occurred and is continuing and such event is attributable to the
failure of UPC to pay principal (or premium, if any) or interest on the
Subordinated Debt Securities on the respective dates such principal (or premium,
if any) or interest on the Subordinated Debt Securities on the respective dates
such principal (or premium, if any) or interest is payable (or in the case of
redemption, on the redemption date), then a holder of record of Capital
Securities may institute a Direct Action for payment on or after the respective
due dates specified in the Subordinated Debt Securities. In connection with such
Direct Action, UPC will be subrogated to the rights of such holder of Capital
Securities under the Declaration to the extent of any payment made by UPC to
such holder of Capital Securities in such Direct Action; provided, however, that
no such subrogation right may be exercised so long as a Declaration Event of
Default has occurred and is continuing.
Because UPC is a holding company, the Subordinated Debt Securities and the
Guarantee are effectively subordinated to all existing and future liabilities,
including trade parables, of UPC's subsidiaries, except to the extent that UPC
is a creditor of the subsidiaries recognized as such.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives New Capital Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Capital Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of New Capital Securities received
in exchange for Old Capital Securities where such New Capital Securities were
acquired as a result of market-making activities or other trading activities.
UPC and the Trust have agreed that, starting on the date of the original
issuance of the Old Capital Securities and ending on the close of business one
year after such date, they will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until December 12, 1997, all dealers offering transactions
in the New Capital Securities may be required to deliver a Prospectus.
UPC and the Trust will not receive any proceeds from any sale of New
Capital Securities by broker-dealers. New Capital Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time-to-time in one or more transactions in the over-the counter market, in
negotiated transactions, through the writing of options on the New Capital
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer and/or the purchasers of
any such New Capital Securities. Any broker-dealer that resells New Capital
Securities that were received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a distribution of such New
Capital Securities may be deemed to be an "underwriter" within the meaning of
the Securities Act and any profit of any such resale of New Capital Securities
and any commissions or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
Each broker-dealer that surrenders Old Capital Securities pursuant to the
Exchange Offer will be deemed to have agreed, by execution of the Letter of
Transmittal, to comply with applicable laws in connection with offers and sales
by way of this Prospectus including without limitation the prospectus delivery
requirements of the Securities Act and the applicable requirements of Rules
10b-5 and 10b-6 under the Exchange Act and to discontinue offers and sales upon
notice from UPC of the happening of any event that requires the making of
changes in the Registration Statement or the Prospectus so that the statements
therein are not misleading and do not omit to state a material fact required to
be stated therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were made) not
misleading. UPC has agreed, subject to certain exceptions, to make any such
required change promptly following the occurrence of any such event.
For a period of one year after the original issuance of the Old Capital
Securities, UPC and the Trust will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. UPC and
the Trust have agreed to pay all expenses incident to the Exchange Offer
(including the expenses of one counsel for the holders of the Old Capital
Securities) other than commissions or concessions of any brokers or dealers and
will indemnify the holders of the Old Capital Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
UNITED STATES FEDERAL INCOME TAXATION
GENERAL
In addition to the two specific opinions referred to below under "-- U.S.
Holders -- Characterization of the Trust" and "-- U.S.
Holders -- Characterization of the Subordinated Debt Securities," Wyatt, Tarrant
& Combs, counsel to UPC and the Trust ("Counsel"), has, in connection with the
issuance of the Old Capital Securities, rendered its opinion generally to the
effect that, subject to the exceptions and qualifications set forth therein, the
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discussion of United States Federal Income Taxation which follows summarizes the
material United States federal income tax consequences of the purchase,
ownership and disposition of Capital Securities.
This summary is based on the Internal Revenue Code of 1986, as amended (the
"Code"), Treasury regulations thereunder, and administrative and judicial
interpretations thereof, each as of the date hereof, all of which are subject to
change, possibly on a retroactive basis.
Except as otherwise stated, this summary deals only with Capital Securities
held as a capital asset by a holder who or which (i) purchased Capital
Securities upon original issuance (an "Initial Holder") and (ii) is a US Holder
(as defined below). It does not deal with all aspects of United States federal
income taxation, nor with the particular United States federal income tax
(hereafter, "income tax") consequences which may be applicable to certain
classes of US Holders (such as banks, thrift institutions, real estate
investment trusts, regulated investment companies, insurance companies, brokers
and dealers in securities or currencies, other financial institutions, tax-
exempt organizations, persons holding Capital Securities as a position in a
"straddle," as part of a "synthetic security" or hedge, as part of a "conversion
transaction" or as part of any other integrated investment, persons having a
functional currency other than the U.S. Dollar and certain United States
expatriates). Further, this summary does not address (a) the income tax
consequences to shareholders in, or partners or beneficiaries of, a holder of
Capital Securities, (b) the United States federal alternative minimum tax
consequences of the purchase, ownership or disposition of Capital Securities, or
(c) any state, local or foreign tax consequences of the purchase, ownership and
disposition of Capital Securities.
A "US Holder" is a holder of Capital Securities who or which is a citizen
or individual resident (or is treated as a citizen or individual resident) of
the United States for income tax purposes, a corporation or partnership created
or organized (or treated as created or organized for income tax purposes) in or
under the laws of the United States or any political subdivision thereof, or a
trust or estate the income of which is includible in its gross income for United
States federal income tax purposes without regard to its source. (For taxable
years beginning after December 31, 1996 (or for the immediately preceding
taxable year, if the trustee of a trust so elects), a trust is a US Holder for
income tax purposes if, and only if, (i) a court within the United States is
able to exercise primary supervision over the administration of the trust and
(ii) one or more United States trustees have the authority to control all
substantial decisions of the trust.
The authorities on which this summary is based are subject to various
interpretations and the opinions of counsel are not binding on the Internal
Revenue Service (the "Service") or the courts, either of which could take a
contrary position. Moreover, no rulings have been or will be sought from the
Service with respect to the transactions described herein. Accordingly, there
can be no assurance that the Service will not challenge the opinions expressed
herein or that a court would not sustain such a challenge.
EXCHANGE OF CAPITAL SECURITIES
The exchange of Old Capital Securities for New Capital Securities should
not be a taxable event to holders for federal income tax purposes. Accordingly a
holder will have the same adjusted basis and holding period in the New Capital
Securities as the holder had in the Old Capital Securities immediately before
the exchange.
US HOLDERS
Characterization of the Trust
In connection with the issuance of the Old Capital Securities, Counsel
rendered its opinion generally to the effect that, under then current law and
assuming full compliance with the terms of the Declaration (and other
documents), and based on certain assumptions and qualifications referenced in
the opinion, the Trust will be characterized for United States federal income
tax purposes as a grantor trust and will not be characterized as an association
taxable as a corporation for such purposes. Accordingly, for income tax
purposes, each holder of Capital Securities generally will be considered the
owner of an undivided interest in the Subordinated Debt Securities owned by the
Trust, and each US Holder will be required to include all income or gain
recognized for income tax purposes with respect to its allocable share of the
Subordinated Debt Securities on its own income tax return.
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<PAGE> 65
CHARACTERIZATION OF THE SUBORDINATED DEBT SECURITIES
In connection with the issuance of the Subordinated Debt Securities,
Counsel rendered its opinion generally to the effect that, under then current
law and assuming full compliance with the terms of the Indenture (and other
documents), and based on certain assumptions and qualifications referenced in
the opinion, the Subordinated Debt Securities will be characterized for United
States federal income tax purposes as debt of UPC.
Original Issue Discount
Under the terms of the Subordinated Debt Securities, UPC has the option to
defer payments of interest from time-to-time by extending the interest payment
period for a period not exceeding 10 consecutive semiannual periods, but not
beyond the maturity of the Subordinated Debt Securities. Recently issued
Treasury regulations under Section 1273 of the Code provide that debt
instruments like the Subordinated Debt Securities will not be considered issued
with OID by reason of UPC's option to defer payments of interest if the
likelihood of deferral is "remote."
UPC has concluded, and this discussion assumes, that, as of the date of
this Prospectus, the likelihood of exercise of that option is "remote" within
the meaning of the applicable regulations, in part because exercising that
option would prevent UPC from declaring dividends on its capital stock and would
prevent UPC from making any payments with respect to debt securities that rank
pari passu or junior to the Subordinated Debt Securities. Therefore, the
Subordinated Debt Securities should not be treated as issued with OID by reason
of UPC's deferral option. Rather, stated interest on the Subordinated Debt
Securities will generally be taxable to a US Holder as ordinary income, when
paid or accrued in accordance with that holder's method of accounting for income
tax purposes. It should be noted, however, that these regulations have not yet
been addressed in any rulings or other interpretations by the Service.
Accordingly, it is possible that the Service could take a position contrary to
the interpretation described herein.
In the event UPC subsequently exercised its option to defer payments of
interest, the Subordinated Debt Securities would be treated as reissued for OID
purposes and the sum of the remaining interest payments on the Subordinated Debt
Securities would thereafter be treated as OID, which would accrue, and be
includible in a US Holder's taxable income, on an economic accrual basis
(regardless of the US Holder's method of accounting for income tax purposes)
over the remaining term of the Subordinated Debt Securities (including any
period of interest deferral), without regard to the timing of payments under the
Subordinated Debt Securities. (Subsequent distributions of interest on the
Subordinated Debt Securities generally would not be taxable.) The amount of OID
that accrued in any period would generally equal the amount of interest that
accrued on the Subordinated Debt Securities in that period at the stated
interest rate. Consequently, during any period of interest deferral, US Holders
will include OID in gross income in advance of the receipt of cash, and a US
Holder which disposes of a Capital Security prior to the record date for payment
of distributions on the Subordinated Debt Securities following that period will
be subject to income tax on OID accrued through the date of disposition (and not
previously included in income), but will not receive cash from the Trust with
respect to that OID.
If UPC's option to defer payments of interest were not treated as remote,
the Subordinated Debt Securities would be treated as initially issued with OID
in an amount equal to the aggregate stated interest over the term of the
Subordinated Debt Securities. That OID would generally be includible in a US
Holder's taxable income, over the term of the Subordinated Debt Securities, on
an economic accrual basis.
Characterization of Income
Because the income underlying the Capital Securities will not be
characterized as dividends for income tax purposes, corporate holders of Capital
Securities will not be entitled to a dividends-received deduction for any income
recognized with respect to the Capital Securities.
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<PAGE> 66
Market Discount and Bond Premium
Holders of Capital Securities other than Initial Holders may be considered
to have acquired their undivided interests in the Subordinated Debt Securities
with market discount or acquisition premium (as each phrase is defined for
income tax purposes).
Receipt of Subordinated Debt Securities or Cash Upon Liquidation of The Trust
The Company will have the right to distribute Subordinated Debt Securities
to holders in exchange for the Capital Securities and in liquidation of the
Trust. Except as discussed below, such a distribution would not be a taxable
event for income tax purposes, and each US Holder would have an aggregate
adjusted basis in its Subordinated Debt Securities for income tax purposes equal
to such holder's aggregate adjusted basis in its Capital Securities. For income
tax purposes, a US Holder's holding period in the Subordinated Debt Securities
received in such a liquidation of the Trust would include the period during
which the Capital Securities were held by the holder. If, however, the relevant
event is a Tax Event which results in the Trust being treated as an association
taxable as a corporation, the distribution would likely constitute a taxable
event to US Holders of the Capital Securities for income tax purposes.
Under certain circumstances described herein (see "Description of the
Capital Securities"), the Subordinated Debt Securities may be redeemed for cash
and the proceeds of such redemption distributed to holders in redemption of
their Capital Securities. Such a redemption would be taxable for income tax
purposes, and a US Holder would recognize gain or loss as if it had sold the
Capital Securities for cash. See "Sales of Capital Securities" below.
Sales of Capital Securities
A US Holder that sells Capital Securities will recognize gain or loss equal
to the difference between its adjusted basis in the Capital Securities and the
amount realized on the sale of such Capital Securities. A US Holder's adjusted
basis in the Capital Securities generally will be its initial purchase price,
increased by OID previously included (or currently includible) in such holder's
gross income to the date of disposition, and decreased by payments received on
the Capital Securities (other than any interest received with respect to the
period prior to the effective date of UPC's first exercise of its option to
defer payments of interest). Any such gain or loss generally will be capital
gain or loss, and generally will be a long-term capital gain or loss if the
Capital Securities have been held for more than one year.
A holder who disposes of its Capital Securities between record dates for
payments of distributions thereon will be required to include accrued but unpaid
interest (or OID) on the Subordinated Debt Securities through the date of
disposition in its taxable income for income tax purposes (notwithstanding that
the holder may receive a separate payment from the purchaser with respect to
accrued interest), and to deduct that amount from the sales proceeds received
(including the separate payment, if any, with respect to accrued interest) for
the Capital Securities (or as to OID only, to add such amount to such holder's
adjusted tax basis in its Capital Securities). To the extent the selling price
is less than the holder's adjusted tax basis (which will include accrued but
unpaid OID, if any), a holder will recognize a capital loss. Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes.
NON-US HOLDERS
The following discussion applies to an Initial Holder who is not a US
Holder (a Non-US Holder").
Payments to a holder of a Capital Security which is a Non-US Holder, will
generally not be subject to withholding of income tax, provided that (a) the
beneficial owner of the Capital Security does not (directly or indirectly,
actually or constructively) own 10% or more of the total combined voting power
of all classes of stock of UPC entitled to vote, (b) the beneficial owner of the
Capital Security is not a controlled foreign corporation that is related to UPC
through stock ownership, and (c) either (I) the beneficial owner of the Capital
Securities certifies to the Trust or its agent, under penalties of perjury, that
it is a Non-US Holder and provides its name and address, or (II) a securities
clearing organization, bank or other financial institution that holds customers'
59
<PAGE> 67
securities in the ordinary course of its trade or business (a "Financial
Institution"), and holds the Capital Security in such capacity, certifies to the
Trust or its agent, under penalties of perjury, that such a statement has been
received from the beneficial owner by it or by another Financial Institution
between it and the beneficial owner in the chain of ownership, and furnishes the
Trust or its agent with a copy thereof.
As discussed above (see "Description of the Capital Securities-Tax Event
Redemption"), changes in legislation affecting the income tax consequences of
the Subordinated Debt Securities are possible, and could adversely affect the
ability of UPC to deduct the interest payable on the Subordinated Debt
Securities. Moreover, any such legislation could, as the Proposed Legislation
would have, adversely affect Non-US Holders by characterizing income derived
from the Subordinated Debt Securities as dividends, generally subject to a 30%
income tax (on a withholding basis) when paid to a Non-US Holder, rather than as
interest which, as discussed above, is generally exempt from income tax in the
hands of a Non-US Holder.
A Non-US Holder of a Capital Security will generally not be subject to
withholding of income tax on any gain realized upon the sale or other
disposition of a Capital Security.
A Non-US Holder which holds Capital Securities in connection with the
active conduct of a United States trade or business will be subject to income
tax on all income and gains recognized with respect to its proportionate share
of the Subordinated Debt Securities.
INFORMATION REPORTING
In general, information reporting requirements will apply to payments made
on, and proceeds from the sale of, Capital Securities held by a noncorporate US
Holder within the United States. In addition, payments made on, and payments of
the proceeds from the sale of, Capital Securities to or through the United
States office of a broker are subject to information reporting unless the holder
thereof certifies as to its non-United States status or otherwise establishes an
exemption from information reporting and backup withholding (see "Backup
Withholding" below). Taxable income on the Capital Securities for a calendar
year should be reported to US Holders on Forms 1099 by the following January
31st.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of, the Capital Securities may
be subject to a "backup" withholding tax of 31% unless the holder complies with
certain identification or exemption requirements. Any amounts so withheld will
be allowed as a credit against the holder's income tax liability, or refunded,
provided the required information is provided to the United States Internal
Revenue Service.
THE PRECEDING DISCUSSION IS ONLY A SUMMARY AND DOES NOT ADDRESS THE
CONSEQUENCES TO A PARTICULAR HOLDER OF THE PURCHASE, OWNERSHIP AND DISPOSITION
OF CAPITAL SECURITIES. POTENTIAL HOLDERS OF CAPITAL SECURITIES ARE URGED TO
CONTACT THEIR OWN TAX ADVISORS TO DETERMINE THEIR PARTICULAR TAX CONSEQUENCES.
ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") (a "Plan"), should consider the fiduciary standards of ERISA in the
context of the Plan's particular circumstances before authorizing an investment
in the Capital Securities. Accordingly, among other factors, the fiduciary
should consider whether the investment would satisfy the prudence and
diversification requirements of ERISA and would be consistent with the documents
and instruments governing the plan.
Section 406 of ERISA and Section 4975 of the Code prohibit Plans, as well
as individual retirement accounts and Keogh plans subject to Section 4975 of the
Code (also "Plans"), from engaging in certain transactions involving "plan
assets" with persons who are "parties in interest" under ERISA or "disqualified
persons" under the Code ("Parties in Interest") with respect to such Plan. A
violation of these "prohibited transaction" rules may result in an excise tax or
other liabilities under ERISA and/or Section 4975 of the Code for such persons,
unless exemptive relief is available under an applicable statutory or
administrative exemption.
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<PAGE> 68
Employee benefit plans that are governmental plans (as defined in Section 3(32)
of ERISA), certain church plans (as defined in Section 3(33) of ERISA) and
foreign plans (as described in Section 4(b)(5) of ERISA) are not subject to the
requirements of ERISA or Section 4975 of the Code.
Under a regulation (the "Plan Assets Regulation") issued by the U.S.
Department of Labor (the "DOL"), the assets of the Trust would be deemed to be
"plan assets" of a Plan for purposes of ERISA and Section 4975 of the Code if
"plan assets" of the Plan were used to acquire an equity interest in such Trust
and no exception were applicable under the Plan Assets Regulation. An "equity
interest" is defined under the Plan Assets Regulation as any interest in an
entity other than an instrument which is treated as indebtedness under
applicable local law and which has no substantial equity features and
specifically includes a beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets Regulation, the
assets of the Trust would not be deemed to be "plan assets" of investing Plans
if, immediately after the most recent acquisition of any equity interest in the
Trust, less than 25% of the value of each class of equity interests in the Trust
were held by Plans, other employee benefit plans not subject to ERISA or Section
4975 of the Code (such as governmental, church and foreign plans), and entities
holding assets deemed to be "plan assets" of any Plan (collectively, "Benefit
Plan Investors"). No assurance can be given by the Initial Purchasers that the
value of the Capital Securities held by Benefit Plan investors will be less than
25% of the total value of such Capital Securities at the completion of the
initial offering or thereafter, and no monitoring other or measures will be
taken with respect to the satisfaction of the conditions to this exception. All
of the Common Securities will be purchased and held by UPC.
Certain transactions involving the Trust could be deemed to constitute
direct or indirect prohibited transactions under ERISA and Section 4975 of the
Code with respect to a Plan if the Capital Securities of the Trust were acquired
with "plan assets" of such Plan and assets of the Trust were deemed to be "plan
assets" of Plans investing in the Trust. For example, if UPC is a Party in
interest with respect to an investing Plan (either directly or by reason of its
ownership of its subsidiaries), extensions of credit between UPC and the Trust
(as represented by the Subordinated Debt Securities and the Guarantees) would
likely be prohibited by Section 406(a)(1)(B) of ERISA and Section 4975(c)(1)(B)
of the Code, unless exemptive relief were available under an applicable
administrative exemption (see below).
The DOL has issued five prohibited transaction class exemptions ("PTCEs")
that may provide exemptive relief for direct or indirect prohibited transactions
resulting from the purchase or holding of the Capital Securities, assuming that
assets of the Trust were deemed to be "plan assets" of Plans investing in the
Trust (see above). Those class exemptions are PTCE 96-23 (for certain
transactions determined by in-house asset managers), PTCE 96-60 (for certain
transactions involving insurance company general accounts), PTCE 91-38 (for
certain transactions involving bank collective investment funds), PTCE 90-1 (for
certain transactions involving insurance company separate accounts), and PTCE
84-14 (for certain transactions determined by independent qualified asset
managers).
Because the Capital Securities may be deemed to be equity interests in the
Trust for purposes of applying ERISA and Section 4975 of the Code, the Capital
Securities may not be purchased or held by any Plan, any entity whose underlying
assets include "plan assets" by reason of any Plan's investment in the entity (a
"Plan Asset Entity") or any person investing "plan assets" of any Plan, unless
such purchaser or holder is eligible for the exemptive relief available under
PTCE 96-23, 95-60, 91-38, 90-1 or 84-14. Any purchaser or holder of the Capital
Securities or any interest therein will be deemed to have represented by its
purchase and holding thereof that it either (a) is not a Plan or a Plan Asset
Entity and is not purchasing such securities on behalf of or with "plan assets"
of any Plan or (b) is eligible for the exemptive relief available under PTCE
96-23, 95-60, 91-38, 90-1 or 84-14 with respect to such purchase or holding.
Due to the complexity of these rules and the penalties that may be imposed
upon persons involved in non-exempt prohibited transactions, it is particularly
important that fiduciaries or other persons considering purchasing Capital
Securities on behalf of or with "plan assets" of any Plan consult with their
counsel regarding the potential consequences if the assets of the Trust were
deemed to be "plan assets" and the availability of exemptive relief under PTCE
96-23, 95-60, 91-38, 90-1 or 84-14.
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<PAGE> 69
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Capital
Securities and the formation of the Trust have been passed upon on behalf of the
Trust by Morris, Nichols, Arsht & Tunnell, special Delaware counsel to the
Trust. The validity of the Subordinated Debt Securities and the Capital
Securities Guarantee have been passed upon for UPC by Wyatt, Tarrant & Combs,
Memphis, Tennessee. Certain United States federal income tax matters have been
passed upon for UPC and the Trust by Wyatt, Tarrant & Combs.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to UPC's Annual Report on Form 10-K for the year ended December 31,
1996, have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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<PAGE> 70
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Charter of Registrant Union Planters Corporation provides as
follows:
TWELFTH: INDEMNIFICATION OF CERTAIN PERSONS:
To the fullest extent permitted by Tennessee law, the Corporation may
indemnify or purchase and maintain insurance to indemnify any of its
directors, officers, employees or agents and any persons who may serve at
the request of the Corporation as directors, officers, employees, trustees
or agents of any other corporation, firm, association, national banking
association, state-chartered bank, trust company, business trust,
organization or any other type of entity whether or not the Corporation
shall have any ownership interest in such entity. Such indemnification(s)
may be provided for in the Bylaws, or by resolution of the Board of
Directors or by appropriate contract with the person involved.
Article V, INDEMNIFICATION, of Registrant Union Planters Corporation's
Amended and Restated Bylaws provides as follows:
The Corporation does hereby indemnify its directors and officers to
the fullest extent permitted by the laws of the State of Tennessee and by
ARTICLE TWELFTH of its Charter. The Corporation may indemnify any other
person to the extent permitted by the Charter and by applicable law.
Indemnification of corporate directors and officers is governed by Sections
48-18-501 through 48-18-509 of the Tennessee Business Corporation Act (the
"Act"). Under the Act, a person may be indemnified by a corporation against
judgments, fines, amounts paid in settlement and reasonable expenses (including
attorneys' fees) actually and necessarily incurred by him in connection with any
threatened or pending suit or proceeding or any appeal thereof (other than an
action by or in the right of the corporation), whether civil or criminal, by
reason of the fact that he is or was a director or officer of the corporation or
is or was serving at the request of the corporation as a director or officer,
employee or agent of another corporation of any type or kind, domestic or
foreign, if such director or officer acted in good faith for a purpose which he
reasonably believed to be in the best interest of the corporation and, in
criminal actions or proceedings only, in addition, had no reasonable cause to
believe that his conduct was unlawful. A Tennessee corporation may indemnify a
director or officer thereof in a suit by or in the right of the corporation
against amounts paid in settlement and reasonable expenses, including attorneys'
fees, actually and necessarily incurred as a result of such suit unless such
director or officer did not act in good faith or with the degree of diligence,
care and skill which ordinarily prudent men exercise under similar circumstances
and in like positions.
A person who has been wholly successful, on the merits or otherwise, in the
defense of any of the foregoing types of suits or proceedings is entitled to
indemnification for the foregoing amounts. A person who has not been wholly
successful in any such suit or proceeding may be indemnified only upon the order
of a court or a finding that the director or officer met the required statutory
standard of conduct by (i) a majority vote of a disinterested quorum of the
board of Directors, (ii) the Board of Directors based upon the written opinion
of independent legal counsel to such effect, or (iii) a vote of the
shareholders.
Under the Declaration, UPC has agreed to indemnify each of the Trustees of
the Trust, and to hold the Trustees harmless against, any loss, damage, claims,
liability or expense incurred without negligence or bad faith on the Trustee's
part, arising out of or in connection with the acceptance or administration of
the Declaration, including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or performance of
any of their powers or duties under the Declaration.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<S> <C> <C>
4.1 -- Certificate of Trust of Union Planters Capital Trust A
</TABLE>
II-1
<PAGE> 71
<TABLE>
<S> <C> <C>
4.2 -- Amended and Restated Declaration of Trust dated as of
December 12, 1996 among Union Planters Corporation, as
Sponsor, First National Bank of Chicago, as Institutional
Trustee, First Chicago Delaware, Inc., as Delaware Trustee,
Jackson W. Moore, John W. Parker and M. Kirk Walters, as
Regular Trustees, and the holders from time to time of
undivided interests in the assets of the Trust
4.3 -- Indenture, dated as of December 12, 1996, between Union
Planters Corporation and The First National Bank of Chicago,
as Indenture Trustee
4.4 -- First Supplemental Indenture, dated as of December 12, 1996,
between Union Planters Corporation and The First National
Bank of Chicago, as Indenture Trustee
4.5 -- Form of Capital Security Certificate for Union Planters
Capital Trust A (included as Exhibit A-2 to Exhibit 4.2)
4.6 -- Capital Securities Guarantee Agreement, dated as of December
12, 1996, between Union Planters Corporation and The First
National Bank of Chicago
4.7 -- Registration Rights Agreement dated December 5, 1996, by and
among Union Planters Corporation, Union Planters Capital
Trust A and Salomon Brothers, Inc. as Representative of the
Initial Purchasers
4.8 -- Form of Subordinated Debt Security (included as Article VI
of Exhibit 4.4)
5.1 -- Opinion of Wyatt, Tarrant & Combs as to legality of the
Junior Subordinated Deferrable Interest Debentures to be
issued by Union Planters Corporation and the Capital
Securities Guarantee*
5.2 -- Opinion of Morris, Nichols, Arsht & Tunnell as to legality
of the 8.20% Capital Trust Pass-through Securities to be
issued by Union Planters Capital Trust A*
8 -- Opinion of Wyatt, Tarrant & Combs as to certain federal
income tax matters*
12 -- Computation of ratio of earnings to fixed charges
23.1 -- Consent of Price Waterhouse LLP
23.2 -- Consent of Wyatt, Tarrant & Combs (included in Exhibits 5.1
and 8)*
23.3 -- Consent of Morris, Nichols, Arsht & Tunnell (included in
Exhibit 5.2)*
24 -- Powers of Attorney (included in Signature Page)
25.1 -- Form T-1 Statement of Eligibility of The First National Bank
of Chicago to act as trustee under the Indenture
25.2 -- Form T-1 Statement of Eligibility of The First National Bank
of Chicago to act as trustee under the Amended and Restated
Declaration of Trust
25.3 -- Form T-1 Statement of Eligibility of The First National Bank
of Chicago under the Capital Securities Guarantee Agreement
for the benefit of the holders of Capital Securities of
Union Planters Capital Trust A
99.1 -- Form of Letter of Transmittal
99.2 -- Form of Notice of Guaranteed Delivery
99.3 -- Form of Exchange Agent Agreement
</TABLE>
- ---------------
* To be filed by amendment.
ITEM 22. UNDERTAKINGS.
Each of the undersigned Registrants undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended (The
"Act"), each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE> 72
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of each
Registrant pursuant to the foregoing provisions, or otherwise, each Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by each Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, each Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
The undersigned Registrants hereby undertake to respond to requests for
information that is incorporated by reference into the Prospectus pursuant to
Item 4, 10(b), 11 or 13 of this From, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the Registration Statement through the date
of responding to the request.
The undersigned Registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired or involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
II-3
<PAGE> 73
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Memphis, State of Tennessee, on February 20, 1997.
UNION PLANTERS CORPORATION
By: /s/ BENJAMIN W. RAWLINS, JR.
------------------------------------
Benjamin W. Rawlins, Jr.
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints E. James House, Jr. and M. Kirk Walters, and each
of them, with the power to act without the other, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her, and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-4 has been signed below by the following
persons in the capacities and on the date indicated:
<TABLE>
<CAPTION>
NAME CAPACITY DATE
---- -------- ----
<C> <S> <C>
/s/ BENJAMIN W. RAWLINS, JR. Chairman of the Board, Chief February 20, 1997
- ----------------------------------------------------- Executive Officer, Director
Benjamin W. Rawlins, Jr. (Principal Executive
Officer)
/s/ JOHN W. PARKER Executive Vice President and February 20, 1997
- ----------------------------------------------------- Chief Financial Officer
John W. Parker (Principal Financial
Officer)
/s/ M. KIRK WALTERS Senior Vice President, February 20, 1997
- ----------------------------------------------------- Treasurer and Chief
M. Kirk Walters Accounting Officer
/s/ ALBERT M. AUSTIN Director February 20, 1997
- -----------------------------------------------------
Albert M. Austin
/s/ EDGAR H. BAILEY Director February 20, 1997
- -----------------------------------------------------
Edgar H. Bailey
/s/ MARVIN E. BRUCE Director February 20, 1997
- -----------------------------------------------------
Marvin E. Bruce
/s/ GEORGE W. BRYAN Director February 20, 1997
- -----------------------------------------------------
George W. Bryan
/s/ ROBERT B. COLBERT, JR. Director February 20, 1997
- -----------------------------------------------------
Robert B. Colbert, Jr.
</TABLE>
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<PAGE> 74
<TABLE>
<CAPTION>
NAME CAPACITY DATE
---- -------- ----
<C> <S> <C>
/s/ JAMES E. HARWOOD Director February 20, 1997
- -----------------------------------------------------
James E. Harwood
/s/ PARNELL S. LEWIS, JR. Director February 20, 1997
- -----------------------------------------------------
Parnell S. Lewis, Jr.
Director February 20, 1997
- -----------------------------------------------------
C.J. Lowrance, III
/s/ JACKSON W. MOORE President, Chief Operating February 20, 1997
- ----------------------------------------------------- Officer and Director
Jackson W. Moore
/s/ STANLEY D. OVERTON Director February 20, 1997
- -----------------------------------------------------
Stanley D. Overton
/s/ V. LANE RAWLINS Director February 20, 1997
- -----------------------------------------------------
V. Lane Rawlins
/s/ DONALD F. SCHUPPE Director February 20, 1997
- -----------------------------------------------------
Donald F. Schuppe
/s/ MIKE P. STURDIVANT Director February 20, 1997
- -----------------------------------------------------
Mike P. Sturdivant
/s/ RICHARD A. TRIPPEER, JR. Director February 20, 1997
- -----------------------------------------------------
Richard A. Trippeer, Jr.
/s/ SPENCE L. WILSON Director February 20, 1997
- -----------------------------------------------------
Spent L. Wilson
/s/ MILTON J. WOMACK Director February 20, 1997
- -----------------------------------------------------
Milton J. Womack
</TABLE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, UNION PLANTERS
CAPITAL TRUST A CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL THE REQUIREMENTS FOR FILING ON FORM S-4 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF MEMPHIS, AND STATE OF TENNESSEE ON FEBRUARY 20,
1997.
UNION PLANTERS CAPITAL TRUST A
By: /s/ JACKSON W. MOORE
------------------------------------
Jackson W. Moore
Regular Trustee
By: /s/ JOHN W. PARKER
------------------------------------
John W. Parker
Regular Trustee
II-5
<PAGE> 1
EXHIBIT 4.1
CERTIFICATE OF TRUST
OF
UNION PLANTERS CAPITAL TRUST A
This Certificate of Trust of Union Planters Capital Trust A
(the "Trust") dated December 3, 1996, is being duly executed and filed by the
undersigned, as trustees, to form a business trust pursuant to the Delaware
Trust Act, 12 Del. C ss.3801, et seq. The undersigned, as trustees, do hereby
certify as follows:
1. The name of the business trust being formed hereby is
"Union Planters Capital Trust A."
2. The name and business address of the trustee of the Trust
which has its principal place of business in the State of Delaware is as
follows:
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
3. This Certificate of Trust shall be effective as of the date
of filing.
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 12/04/1996
960354596 - 2690802
<PAGE> 2
IN WITNESS WHEREOF, the undersigned, being the sole trustees
of the Trust, have executed this Certificate of Trust as of the date first above
written.
/s/ Jackson W. Moore
------------------------------------
Jackson W. Moore, as Trustee
/s/ John W. Parker
------------------------------------
John W. Parker, as Trustee
/s/ Kirk M. Walters
------------------------------------
Kirk M. Walters, as Trustee
FIRST CHICAGO DELAWARE INC.
as Delaware Trustee
By: /s/ Steven M. Wagner
--------------------------------
Name: Steven M. Wagner
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO
as Institutional Trustee
By: /s/ R. J. Bruner
--------------------------------
Name: R. J. Bruner
Title: Vice President
<PAGE> 1
EXHIBIT 4.2
==============================================
AMENDED AND RESTATED DECLARATION
OF TRUST
UNION PLANTERS CAPITAL TRUST A
Dated as of December 12, 1996
==============================================
<PAGE> 2
CROSS-REFERENCE TABLE*
Section of Trust Indenture
Act of 1939, as amended Section of Declaration
- -------------------------- ----------------------
310(a) 5.3(a)
310(c) Inapplicable
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(f) Inapplicable
315(a) 3.9(b)
315(c) 3.9(a)
315(d) 3.9(a)
316(a) Annex I
316(b) Annex I
316(c) 3.6(e)
* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or
provisions.
<PAGE> 3
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
UNION PLANTERS CAPITAL TRUST A
December 12, 1996
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated and effective as of December 12, 1996, by the Trustees (as defined
herein), the Sponsor (as defined herein) and by the holders, from time to time,
of undivided beneficial interests in the Trust to be issued pursuant to this
Declaration;
WHEREAS, the Trustees and the Sponsor established Union
Planters Capital Trust A (the "Trust"), a statutory business trust under the
Delaware Business Trust Act pursuant to a Declaration of Trust dated as of
December 3, 1996 (the "Original Declaration"), and a Certificate of Trust filed
with the Secretary of State of the State of Delaware on December 4, 1996, for
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Debentures of the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have
been issued;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the Original
Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitutes the governing instrument of such business trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
<PAGE> 4
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and Sections of and Annexes
and Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Administrative Action" has the meaning set forth in paragraph
4(c) of Annex I.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Bankruptcy Event" means, with respect to any Person:
(a) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of such Person 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 such Person 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
(b) such Person 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 such Person or of any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due.
"Book Entry Interest" means a beneficial interest in a Global
Capital Security, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.2.
"Business Day" means any day other than Saturday, Sunday or
any other day on which federal or state banking institutions in the Borough of
Manhattan, the City of New York, are authorized or obligated by law, executive
order or regulation to close.
2
<PAGE> 5
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
"Capital Securities Guarantee" means the guarantee agreement
to be dated as of December 12, 1996, of the Sponsor in respect of the Capital
Securities.
"Capital Securities" means the Initial Capital Securities and
Exchange Capital Securities.
"Capital Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Certificate" means any certificate evidencing Securities.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Capital Securities and in whose name or in the name of a
nominee of that organization shall be registered a Global Capital Security and
which shall undertake to effect book entry transfers and pledges of the Capital
Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the "Closing Date" under the Purchase
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning specified in Section
7.1(a).
"Common Securities Guarantee" means the guarantee agreement to
be dated as of December 12, 1996 of the Sponsor in respect of the Common
Securities.
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security substantially in the
form of Exhibit A-3.
"Company Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any officer, employee or agent of the Trust or its
Affiliates.
3
<PAGE> 6
"Corporate Trust Office" means the office of the Institutional
Trustee at which the corporate trust business of the Institutional Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at at One First National Plaza,
Suite 0126, Chicago, Illinois, 60670-0126.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Union Planters Corporation, a
Tennessee corporation, in its capacity as issuer of the Debentures under the
Indenture.
"Debentures" means the Initial Debentures and the Exchange
Debentures.
"Debenture Trustee" means The First National Bank of Chicago,
a national banking association, as trustee under the Indenture until a successor
is appointed thereunder, and thereafter means such successor trustee.
"Definitive Capital Securities" means Initial Definitive
Capital Securities and Exchange Definitive Capital Securities.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depositary" means, with respect to the Capital Securities,
DTC, or another Clearing Agency.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, New York, New York,
the initial Clearing Agency.
"Event of Default" in respect of the Securities means an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Exchange Capital Securities" has the meaning specified in
Section 7.1(a).
"Exchange Capital Security Certificate" means a certificate
representing an Exchange Capital Security substantially in the form of Exhibit
A-2.
"Exchange Certificate" means a Common Security Certificate or
an Exchange Capital Security Certificate.
4
<PAGE> 7
"Exchange Debentures" means 8.20% Junior Subordinated
Deferrable Interest Debentures due 2026 to be issued by the Debenture Issuer
under the Indenture to be exchanged with the Initial Debentures pursuant to the
Registration Agreement.
"Exchange Definitive Capital Securities" means any Exchange
Securities in definitive form issued by the Trust.
"Exchange Global Capital Securities" means any Exchange
Capital Securities in global form issued by the Trust.
"Exchange Securities" means Common Securities and Exchange
Capital Securities.
"Extension Period" has the meaning set forth in paragraph 2(b)
of Annex I.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Global Capital Securities" means Initial Global Capital
Securities and Exchange Global Capital Securities.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"IAI" has the meaning set forth in Section 7.3(c).
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of December 12, 1996,
among the Debenture Issuer and the Debenture Trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued.
"Indenture Event of Default" means an Event of Default as
defined in the Indenture.
"Initial Capital Securities" has the meaning specified in
Section 7.1(a).
"Initial Capital Security Certificate" means a certificate
representing an Initial Capital Security substantially in the form of Exhibit
A-1.
"Initial Certificate" means a Common Security Certificate or
an Initial Capital Security Certificate.
"Initial Debentures" means 8.20% Junior Subordinated
Deferrable Interest Debentures due 2026 to be issued by the Debenture Issuer
under the Indenture to be held by the
5
<PAGE> 8
Institutional Trustee or, upon a dissolution of the Trust, the Depositary or the
Holder, as the case may be, a specimen certificate for such series of Debentures
being Exhibit D.
"Initial Definitive Capital Securities" means any Restricted
Definitive Capital Security and any other Initial Capital Securities in
definitive form issued by the Trust.
"Initial Global Capital Securities" means any Rule 144A Global
Security and any other Initial Capital Securities in global form issued by the
Trust.
"Initial Securities" means Common Securities and the Initial
Capital Securities.
"Institutional Trustee" means the Trustee meeting the
eligibility requirements set forth in Section 5.3.
"interest" means any interest due on the Debentures including
any Compounded Interest, Special Interest and Additional Interest.
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Liquidation" has the meaning set forth in paragraph 3 of
Annex I.
"Liquidation Distribution" has the meaning set forth in
paragraph 3 of Annex I.
"Majority in liquidation amount of the Securities" means,
except as provided in the terms of the Capital Securities or by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Capital Securities
or Holders of outstanding Common Securities voting separately as a class, who
are the record owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Ministerial Action" has the meaning set forth in paragraph
4(c) of Annex I.
"Offering Memorandum" has the meaning set forth in Section
3.6.
"Officers' Certificates" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for it in this Declaration shall include:
6
<PAGE> 9
(a) a statement that each officer signing the Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 7.2.
"Payment Amount" has the meaning set forth in Section 6.1.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Pro Rata" has the meaning set forth in paragraph 8 of
Annex I.
"PORTAL" has the meaning set forth in Section 3.6(b).
"Property Account" has the meaning set forth in Section
3.8(c).
"Purchase Agreement" means the Purchase Agreement for the
offering and sale of Capital Securities in the form of Exhibit E.
"QIBs" has the meaning set forth in Section 7.3.
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning set forth in
paragraph 4(e) of Annex I.
"Redemption Price" has the meaning set forth in paragraph 4(a)
of Annex I.
"Redemption Tax Opinion" has the meaning set forth in
paragraph 4(c) of Annex I.
"Registered Exchange Offer" has the meaning set forth in the
Registration Agreement.
"Registrar" has the meaning set forth in Section 7.2.
7
<PAGE> 10
"Registration Agreement" means the Registration Agreement
relating to the Securities in the form of Exhibit F.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Institutional
Trustee, any officer within the Corporate Trust Office of the Institutional
Trustee, including any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer or other officer of
the Corporate Trust Office of the Institutional 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.
"Restricted Capital Securities" means Rule 144A Global Capital
Securities and Restricted Definitive Capital Securities.
"Restricted Definitive Capital Securities" has the meaning set
forth in Section 7.3(c).
"Restricted Securities Legend" has the meaning set forth in
Section 9.2(g).
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Capital Security" has the meaning set forth
in Section 7.3(a).
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Capital
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee
and the Capital Securities Guarantee.
"Share Purchase Rights Plan" has the meaning set forth in
Exhibit I.
"Sponsor" means Union Planters Corporation, a Tennessee
corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in
Section 5.7(b).
8
<PAGE> 11
"Successor Institutional Trustee" has the meaning set forth in
Section 5.7(b).
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
"Tax Event" has the meaning set forth in paragraph 4(c) of
Annex I.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Capital Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, holders of outstanding Capital Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Transfer Agent" has the meaning set forth in Section 7.2.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by Section
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
9
<PAGE> 12
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Institutional Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the
Institutional Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of such record date, provided
that neither the Sponsor nor the Regular Trustees on behalf of the Trust shall
be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Institutional
Trustee by the Sponsor and the Regular Trustees on behalf of the Trust, and (ii)
at any other time, within 30 days of receipt by the Trust of a written request
therefor, a List of Holders as of a date no more than 14 days before such List
of Holders is given to the Institutional Trustee. The Institutional Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity) provided that the
Institutional Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its
obligations under Section Section 311(a), 311(b) and 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee. Within 60
days after May 15 of each year, the Institutional Trustee shall provide to the
Holders of the Capital Securities such reports as are required by Section 313(a)
of the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Institutional Trustee shall also
comply with the other requirements of Section 313 of the Trust Indenture Act.
The Sponsor shall promptly notify the Institutional Trustee when the Capital
Securities are listed on any stock exchange.
SECTION 2.4 Periodic Reports to Institutional Trustee. Each of
the Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Institutional Trustee such documents, reports and information as required by
Section 314 (if any) and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act and an Officers' Certificate as to its
compliance with all conditions and covenants under this Declaration on an annual
basis on or before 120 days after the end of each fiscal year of the Sponsor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
10
<PAGE> 13
SECTION 2.6 Events of Default; Waiver. (a) The Holders of a
Majority in liquidation amount of Capital Securities may, by vote or consent, on
behalf of the Holders of all of the Capital Securities, waive any past Event of
Default in respect of the Capital Securities and its consequences, provided
that, if the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the Event of
Default under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the
Debentures (a "Super Majority") to be waived under the
Indenture, such Event of Default under this Declaration may
only be waived by the vote or consent of the Holders of at
least the proportion in liquidation amount of the Capital
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act. Upon
such waiver, any such Indenture Event of Default shall cease to exist, and any
Event of Default with respect to the Capital Securities arising therefrom shall
be deemed to have been cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default with
respect to the Capital Securities or impair any right consequent thereon. Any
waiver by the Holders of the Capital Securities of an Event of Default with
respect to the Capital Securities shall also be deemed to constitute a waiver by
the Holders of the Common Securities of any such Event of Default with respect
to the Common Securities for all purposes of this Declaration without any
further act, vote, or consent of the Holders of the Common Securities.
The Holders of a Majority in liquidation amount of the Capital
Securities will have the right to direct the time, method and place of
conducting any proceeding of any remedy available to the Institutional Trustee
or to direct the exercise of any trust or power conferred upon the Institutional
Trustee, including the right to direct the Institutional Trustee to exercise the
remedies available to it as holder of the Debentures; provided, however, that
(subject to the provisions of Section 3.9) the Institutional Trustee shall have
the right to decline to follow any such direction if the Institutional Trustee
shall determine that the action so directed would be unjustly prejudicial to the
Holders not taking part in such direction or if the Institutional Trustee, being
advised by counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Institutional Trustee, in good faith, by its board
of directors or trustees, executive committee, or a trust committee of directors
or trustees and/or Responsible Officers, shall determine that the action or
proceedings so directed would involve the Institutional Trustee in personal
liability.
(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote or consent, on behalf of the Holders of all of
the Common Securities, waive any past Event of Default with respect to the
Common Securities and its consequences, provided, that if the underlying
Indenture Event of Default:
11
<PAGE> 14
(i) is not waivable under the Indenture, the Event of
Default under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority
to be waived under the Indenture, such Event of Default under
this Declaration may only be waived by the vote or consent of
the Holders of at least the proportion in liquidation amount
of the Common Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that, notwithstanding (i) or
(ii) above, each Holder of Common Securities will be deemed to
have waived any such Indenture Event of Default and all Events
of Default with respect to the Common Securities and their
consequences until all Events of Default with respect to the
Capital Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so
cured, waived or otherwise eliminated, the Institutional
Trustee will be deemed to be acting solely on behalf of the
Holders of the Capital Securities and only the Holders of the
Capital Securities will have the right to direct the
Institutional Trustee in accordance with the terms of the
Securities. The foregoing provisions of this Section 2.6(b)
shall be in lieu of Section Section 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and Section Section
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are
hereby expressly excluded from this Declaration and the
Securities, as permitted in the Trust Indenture Act. Subject
to the foregoing provisions in this Section 2.6(b), upon such
waiver, any such Indenture Event of Default shall cease to
exist, and any Event of Default with respect to the Common
Securities arising therefrom shall be deemed to have been
cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or
Event of Default with respect to the Common Securities or
impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the
Institutional Trustee at the direction of the Holders of the Capital Securities
constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.6(c) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Events of Default; Notice. (a) The Institutional
Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the Securities,
notices of all defaults with respect to the Securities actually known to a
Responsible Officer of the Institutional Trustee, unless such defaults have been
cured before the giving of such notice (the term "defaults" for the purposes of
this Section 2.7(a) being hereby defined to be an Indenture Event of Default,
not including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); provided, however, that, except for a
default in the payment of principal of (or premium, if any) or interest on any
of the Debentures or in the payment of any sinking fund installment established
for the Debentures, the Institutional Trustee shall be protected in withholding
such notice if and so long
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as a Responsible Officer of the Institutional Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Capital Securities.
(b) The Institutional Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections 5.01(a) and 5.01(b)
of the Indenture; or
(ii) any default as to which the Institutional
Trustee shall have received written notice or of which a
Responsible Officer of the Institutional Trustee charged with
the administration of the Declaration shall have actual
knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name. The Trust is named "Union Planters Capital
Trust A," as such name may be modified from time to time by the Regular Trustees
following written notice to the Holders of Securities. The Trust's activities
may be conducted under the name of the Trust or any other name deemed advisable
by the Regular Trustees.
SECTION 3.2 Office. The address of the principal office of the
Trust is c/o Union Planters Corporation, 7130 Goodlett Farms Parkway, Memphis
Tennessee 38018. On ten Business Days written notice to the Holders of
Securities, the Regular Trustees may designate another principal office.
SECTION 3.3 Purpose. The exclusive purposes and functions of
the Trust are (a) to issue and sell Securities representing undivided beneficial
interests in the assets of the Trust, (b) investing the gross proceeds from such
sale to acquire the Debentures and (c) except as otherwise limited herein, to
engage in only those other activities necessary or incidental thereto. The Trust
shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust not to be classified for
United States federal income tax purposes as a grantor trust.
SECTION 3.4 Authority. Subject to the limitations provided in
this Declaration and to the specific duties of the Institutional Trustee, the
Regular Trustees shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Regular Trustees in accordance
with their powers shall constitute the act of and serve to bind the Trust and an
action taken by the Institutional Trustee on behalf of the Trust in accordance
with its powers shall constitute the act of and serve to bind the Trust. In
dealing with the Trustees acting on behalf of the Trust, no Person shall be
required to inquire into the authority of the Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Trustees as set forth in this Declaration.
SECTION 3.5 Title to Property of the Trust. Except as provided
in Section 3.8 with respect to the Debentures and the Property Account or as
otherwise provided in this
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Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees. The
Regular Trustees shall have the exclusive power, duty and authority to cause the
Trust to engage in the following activities:
(a) to issue and sell the Capital Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than two series of Capital Securities (as provided in
Section 7.1(a)) and no more than one series of Common Securities, and, provided,
further, that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a simultaneous
issuance of Initial Capital Securities and Common Securities on the Closing Date
and an issuance of Exchange Capital Securities as provided in Section 7.1(a);
(b) in connection with the issue and sale of the Capital
Securities, at the direction of the Sponsor, to:
(i) distribute an offering memorandum (the "Offering
Memorandum" in preliminary and/or final form prepared by the
Sponsor, including any amendments or supplements thereto, in
relation to offering and sale of the Capital Securities.
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Capital Securities in any State in which the Sponsor has
determined to qualify or register such Capital Securities for
sale;
(iii) if and at such time determined by the Sponsor,
execute and file an application, prepared by the Sponsor, to
the Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market and if and at such time determined
by the Sponsor, to The New York Stock Exchange, Inc. or any
other national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of any
Capital Securities;
(iv) execute and deliver letters or documents to, or
instruments with, DTC relating to the Capital Securities;
(v) execute and enter into the Purchase Agreement,
the Registration Agreement and other related agreements
providing for the sale of the Capital Securities and to
perform its obligations thereunder; and
(vi) execute and file one or more registration
statements relating to the Capital Securities contemplated by
the Registration Agreement.
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(c) to acquire the Debentures with the proceeds of the sale of
the Capital Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Institutional Trustee for the benefit of the Holders of the
Capital Securities and the Holders of Common Securities;
(d) to give the Sponsor and the Institutional Trustee prompt
written notice of the occurrence of a Tax Event; provided, that the Regular
Trustees shall consult with the Sponsor before taking or refraining from taking
any Ministerial Action in relation to a Tax Event;
(e) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Capital Securities and Holders of Common Securities as
to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of this Declaration, the
Securities or the Registration Agreement;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Institutional
Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Institutional Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to
carry out any of the purposes of the
Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities;
(m) to give prompt written notice to (1) the Holders of the
Securities of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Indenture, and (2) any Holder of any notice received from the
Debenture Issuer pursuant to Section 7(c)(i) of the Registration Agreement on
such Holder's behalf;
(n) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing;
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(o) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such existence
is necessary to protect the limited liability of the Holders of the Capital
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(p) to take any action, not inconsistent with this Declaration
or with applicable law, that the Regular Trustees determine in their discretion
to be necessary or desirable in carrying out the activities of the Trust as set
out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(ii) causing the Trust to be classified for United
States federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure
that the Debentures will be treated as indebtedness of the
Debenture Issuer for United States federal income tax
purposes, provided, that such action does not adversely affect
the interests of Holders of Capital Securities or alter the
terms thereof; and
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf of
the Trust.
(r) Each Regular Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against such Regular Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6), such Regular Trustee shall
exercise such of the rights and powers vested in him by this Declaration, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(s) No provision of this Declaration shall be construed to
relieve a Regular Trustee from liability for his own negligent action, his own
negligent failure to act, or his own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default
and after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the
Regular Trustees shall be determined solely by the
express provisions of this Declaration and the
Regular Trustees shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Declaration, and
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no implied covenants or obligations shall be read
into this Declaration against the Regular Trustees;
and
(B) in the absence of bad faith on the part
of a Regular Trustee, such Regular 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 such Regular Trustee and conforming to the
requirements of this Declaration; but in the case of
any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to such Regular Trustee, such Regular
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Declaration;
(ii) a Regular Trustee shall not be liable for any
error of judgment made in good faith unless it shall be proved
that such Regular Trustee was negligent in ascertaining the
pertinent facts;
(iii) no provision of this Declaration shall require
a Regular Trustee to expend or risk his own funds or otherwise
incur personal financial liability in the performance of any
of his duties or in the exercise of any of his rights or
powers, if he shall have reasonable grounds for believing that
the repayment of such funds or liability is not reasonably
assured to him under the terms of this Declaration or
indemnity reasonably satisfactory to such Regular Trustee
against such risk or liability is not reasonably assured to
him;
(iv) a Regular Trustee shall not be responsible for
monitoring the compliance by the Institutional Trustee or the
Sponsor with their respective duties under this Declaration,
nor shall such Regular Trustee be liable for any default or
misconduct of the Institutional Trustee or the Sponsor;
(v) a Regular Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document believed by him to be genuine and to have been
signed, sent or presented by the proper party or parties;
(vi) a Regular Trustee shall have no duty to see to
any recording, filing or registration of any instrument
(including any financing or continuation statement or any
filing under tax or securities laws) or any rerecording,
refiling or registration thereof;
(vii) the Regular Trustees may consult with counsel
or other experts of their selection and the advice or opinion
of such counsel and experts with respect to legal matters or
advice within the scope of such experts' area of expertise
shall be full and complete authorization and protection in
respect of any action taken,
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suffered or omitted by them hereunder in good faith and in
accordance with such advice or opinion, such counsel may be
counsel to the Sponsor or any of its Affiliates, and may
include any of its employees. The Regular Trustees shall have
the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(viii) the Regular Trustees shall be under no
obligation to exercise any of the rights or powers vested in
them by this Declaration at the request or direction of any
Holder, unless such Holder shall have provided to the Regular
Trustees security and indemnity, reasonably satisfactory to
the Regular Trustees, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be
incurred by them in complying with such request or direction,
including such reasonable advances as may be requested by
them;
(ix) a Regular Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but he, in his discretion, may make such further
inquiry or investigation into such facts or matters as he may
see fit;
(x) a Regular Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees or
attorneys and such Regular Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney appointed with due care by him hereunder;
(xi) any action taken by a Regular Trustee or his
agents hereunder shall bind the Trust and the Holders of the
Securities, and the signature of such Regular Trustee or his
agents alone shall be sufficient and effective to perform any
such action and no third party shall be required to inquire as
to the authority of such Regular Trustee to so act or as to
his compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by
such Regular Trustee's or his agent's taking such action;
(xii) except as otherwise expressly provided by this
Declaration, a Regular Trustee shall not be under any
obligation to take any action that is discretionary under the
provisions of this Declaration; and
(xiii) a Regular Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this
Declaration.
(t) No provision of this Declaration shall be deemed to impose
any duty or obligation on a Regular Trustee to perform any act or acts or
exercise any right, power, duty or
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obligation conferred or imposed on it, in any jurisdiction in which it shall be
illegal or in which such Regular Trustee shall be unqualified or incompetent in
accordance with applicable law to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to a Regular Trustee shall be construed to be a duty.
The Regular Trustees shall take all actions on behalf of the
Trust that are not specifically required by this Declaration or the Trust
Indenture Act to be taken by any other Trustee.
The Regular Trustees must exercise the powers set forth in
this Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have
none of the powers or the authority of the Institutional Trustee set forth in
Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees. (a) The Trust shall not, and the Trustees (including the Institutional
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Institutional Trustee) shall cause the Trust not
to:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such proceeds
to Holders of Securities pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other
than loans represented by the Debentures;
(v) possess any power or otherwise act in such a
way as to vary the Trust assets or the terms of the
Securities in any way whatsoever other than as expressly
provided herein;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the Trust
other than the Securities; or
(vii) other than as provided in this Declaration
(including Annex I), (A) direct the time, method and place of
exercising any trust or power conferred upon the Debenture
Trustee with respect to the Debentures, (B) waive any past
default that is waivable under the Indenture, (C) exercise any
right to rescind or annul any
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declaration that the principal of all the Debentures shall be
due and payable, or (D) consent to any amendment, modification
or termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have received
an opinion of counsel to the effect that such modification
will not cause more than an insubstantial risk that for United
States federal income tax purposes the Trust will not be
classified as a grantor trust.
SECTION 3.8 Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and held of record in
the name of the Institutional Trustee in trust for the benefit of the Trust and
the Holders of the Securities. The right, title and interest of the
Institutional Trustee to the Debentures shall vest automatically in each Person
who may hereafter be appointed as Institutional Trustee in accordance with
Section 5.7. Such vesting and cessation of title shall be effective whether or
not conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Institutional Trustee shall not transfer its right,
title and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Account") in the name of
and under the exclusive control of the Institutional Trustee,
and maintained in the Institutional Trustee's trust
department, on behalf of the Holders of the Securities and,
upon the receipt of payments of funds made in respect of the
Debentures held by the Institutional Trustee, deposit such
funds into the Property Account and make payments to the
Holders of the Capital Securities and Holders of the Common
Securities from the Property Account in accordance with
Section 6.1. Funds in the Property Account shall be held
uninvested until disbursed in accordance with this
Declaration. The Property Account shall be an account that is
maintained with a banking institution the rating on whose
long-term unsecured indebtedness is at least equal to the
rating assigned to the Capital Securities by a "nationally
recognized statistical rating organization", as that term is
defined for purposes of Rule 436(g)(2) under the Securities
Act;
(ii) engage in such ministerial activities as shall
be necessary or appropriate to effect the redemption of the
Capital Securities and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by
the Regular Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution of the
Debentures to Holders of Securities upon the occurrence of
certain special events (as may be defined in the terms of the
Securities) arising from a Tax Event or other specified
circumstances pursuant to the terms of the Securities.
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(d) The Institutional Trustee shall take all actions and
perform such duties as may be specifically required of the Institutional Trustee
pursuant to the terms of the Securities.
(e) The Institutional Trustee may take any Legal Action which
arises out of or in connection with an Event of Default of which a Responsible
Officer of the Institutional Trustee has actual knowledge or the Institutional
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act; provided, however, that if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay interest or principal (or premium, if any) on the Debentures on the date
such interest or principal (or premium, if any) is otherwise payable (or in the
case of redemption, on the redemption date), then a Holder of Capital Securities
may directly institute a proceeding for enforcement of payment to such Holder of
the principal of (or premium, if any) or interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such Direct Action, the
rights of the Holders of the Common Securities will be subrogated to the rights
of such Holder of Capital Securities to the extent of any payment made by the
Debenture Issuer to such Holder of Capital Securities in such Direct Action;
provided, however, that no Holder of the Common Securities may exercise any such
right of subrogation so long as an Event of Default with respect to the Capital
Securities has occurred and is continuing. Except as provided in the preceding
sentences, the Holders of Capital Securities will not be able to exercise
directly any other remedy available to the holders of the Debentures.
(f) The Institutional Trustee shall continue to serve as a
Trustee until:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of
Securities pursuant to the terms of the Securities; or
(ii) a Successor Institutional Trustee has been
appointed and has accepted that appointment in accordance with
Section 5.7.
(g) The Institutional Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default occurs and is continuing, the
Institutional Trustee may, for the benefit of Holders of the Securities, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to this Declaration (including Annex I) and the terms of such
Securities.
(h) Subject to this Section 3.8, the Institutional Trustee
shall have none of the duties, liabilities, powers or the authority of the
Regular Trustees set forth in Section 3.6.
The Institutional Trustee must exercise the powers set forth
in this Section 3.8 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Institutional Trustee
shall not take any action that is inconsistent with the purposes and functions
of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the
Institutional Trustee.
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(a) The Institutional Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and no implied covenants shall be read into this
Declaration against the Institutional Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6), the
Institutional Trustee shall exercise such of the rights and powers vested in it
by this Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Institutional Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default
and after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the
Institutional Trustee shall be determined solely by
the express provisions of this Declaration and the
Institutional Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into
this Declaration against the Institutional Trustee;
and
(B) in the absence of bad faith on the part
of the Institutional Trustee, the Institutional
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 Institutional Trustee and conforming
to the requirements of this Declaration; but in the
case of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Institutional Trustee, the
Institutional Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable
for any error of judgment made in good faith by a Responsible
Officer of the Institutional Trustee, unless it shall be
proved that the Institutional Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable
with respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the Holders
of not less than a Majority in liquidation amount of the
Capital Securities or the Common Securities, as applicable,
relating to the time, method and place of conducting any
proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under this Declaration;
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(iv) no provision of this Declaration shall require
the Institutional 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 it shall have reasonable grounds for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration
or indemnity reasonably satisfactory to the Institutional
Trustee against such risk or liability is not reasonably
assured to it;
(v) the Institutional Trustee's sole duty with
respect to the custody, safe keeping and physical preservation
of the Debentures and the Property Account shall be to deal
with such property in a similar manner as the Institutional
Trustee deals with similar property for its own account,
subject to the protections and limitations on liability
afforded to the Institutional Trustee under this Declaration
and the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or
liability for or with respect to the value, genuineness,
existence or sufficiency of the Debentures or the payment of
any taxes or assessments levied thereon or in connection
therewith;
(vii) the Institutional Trustee shall not be liable
for any interest on any money received by it except as it may
otherwise agree in writing with the Sponsor. Money held by the
Institutional Trustee need not be segregated from other funds
held by it except in relation to the Property Account
maintained by the Institutional Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by law;
and
(viii) the Institutional Trustee shall not be
responsible for monitoring the compliance by the Regular
Trustees or the Sponsor with their respective duties under
this Declaration, nor shall the Institutional Trustee be
liable for any default or misconduct of the Regular Trustees
or the Sponsor.
SECTION 3.10 Certain Rights of Institutional Trustee. (a)
Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely
and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor or the
Regular Trustees contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate;
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(iii) whenever in the administration of this
Declaration, the Institutional Trustee shall deem it desirable
that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Institutional
Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly
delivered by the Sponsor or the Regular Trustees;
(iv) the Institutional Trustee shall have no duty to
see to any recording, filing or registration of any instrument
(including any financing or continuation statement or any
filing under tax or securities laws) or any rerecording,
refiling or registration thereof;
(v) the Institutional Trustee may consult with
counsel or other experts of its selection and the advice or
opinion of such counsel and experts with respect to legal
matters or advice within the scope of such experts' area of
expertise 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, such counsel may be counsel to the Sponsor
or any of its Affiliates, and may include any of its
employees. The Institutional Trustee shall have the right at
any time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Declaration at the request or direction of any
Holder, unless such Holder shall have provided to the
Institutional Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against the costs,
expenses (including attorneys' fees and expenses and the
expenses of the Institutional Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Institutional
Trustee; provided, however, that nothing contained in this
Section 3.10(a)(vi) shall be taken to relieve the
Institutional Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
(vii) the Institutional Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Institutional Trustee, in its discretion,
may make such further inquiry or investigation into such facts
or matters as it may see fit;
(viii) the Institutional Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians, nominees
or attorneys and the Institutional Trustee shall not be
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responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or
its agents hereunder shall bind the Trust and the Holders of
the Securities, and the signature of the Institutional Trustee
or its agents alone shall be sufficient and effective to
perform any such action and no third party shall be required
to inquire as to the authority of the Institutional Trustee to
so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be
conclusively evidenced by the Institutional Trustee's or its
agent's taking such action;
(x) whenever in the administration of this
Declaration the Institutional Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the
Institutional Trustee (i) may request instructions from the
Holders of the Securities which instructions from the Holders
may only be given by the Holders of the same proportion in
liquidation amount of the Securities as would be entitled to
direct the Institutional Trustee under the terms of the
Securities in respect of such remedy, right or action, (ii)
may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii)
shall be protected in conclusively relying on or acting in or
accordance with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Institutional Trustee shall not be under any
obligation to take any action that is discretionary under the
provisions of this Declaration; and
(xii) the Institutional Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it
in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it
by this Declaration.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Institutional Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal or in which the Institutional
Trustee shall be unqualified or incompetent in accordance with applicable law to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee. Notwithstanding any other
provision of this Declaration other than Section 5.2, the Delaware Trustee shall
not be entitled to exercise any powers, nor shall the Delaware Trustee have any
of the duties and responsibilities of the Regular Trustees or the Institutional
Trustee described in this Declaration, or any of the duties and responsibilities
of the Trustees generally described in this Declaration. Except as set forth in
Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Business Trust
Act.
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SECTION 3.12 Execution of Documents. Unless otherwise
determined by the Regular Trustees, and except as otherwise required by the
Business Trust Act, a majority of the Regular Trustees or, if there are only
two, any Regular Trustee or, if there is only one, such Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities. The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration, the Debentures or the Securities.
SECTION 3.14 Duration of Trust. The Trust, unless terminated
pursuant to the provisions of Article VIII hereof, shall have existence for
fifty-five (55) years from the Closing Date.
SECTION 3.15 Mergers. (a) The Trust may not consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any corporation or
other body, except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees
or, if there are more than two, a majority of the Regular Trustees and without
the consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the
obligations of the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the
Securities (the "Successor Securities") so that the
Successor Securities rank the same as the Securities
rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly appoints a
trustee of the Successor Entity that possesses the same powers
and duties as the Institutional Trustee as the holder of the
Debentures;
(iii) the Capital Securities or any Successor
Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national
securities exchange or with another organization on which the
Capital Securities are then listed or quoted, if any;
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(iv) such merger, consolidation, amalgamation or
replacement does not cause the Capital Securities (including
any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than with
respect to any dilution of such Holders' interests in the
Successor Entity as a result of such merger, consolidation,
amalgamation or replacement);
(vi) such Successor Entity has a purpose
substantially identical to that of the Trust;
(vii) prior to such merger, consolidation,
amalgamation or replacement, the Sponsor has received an
opinion of a nationally recognized independent counsel to the
Trust experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation
or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the
Securities (including any Successor Securities) in
any material respect (other than with respect to any
dilution of the Holders' interest in the Successor
Entity);
(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor
the Successor Entity will be required to register as
an Investment Company; and
(C) following such merger, consolidation,
amalgamation or replacement, the Trust (or the
Successor Entity) will continue to be classified as a
grantor trust for United States federal income tax
purposes; and
(viii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities at least to
the extent provided by the Securities Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or to be replaced by
any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be classified as other
than a grantor trust for United States federal income tax purposes.
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ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities. The
Sponsor will purchase all of the Common Securities issued by the Trust, in an
amount at least equal to 3% of the capital of the Trust, at the same time as the
Capital Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor. In connection
with the issue and sale of the Capital Securities, the Sponsor shall have the
exclusive right and responsibility to engage in the following activities:
(a) to prepare and distribute the Offering Memorandum in
preliminary and final form in relation to the Capital Securities, including any
amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Capital Securities and
to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable in order to comply with the applicable laws of any
such States;
(c) to prepare for filing and cause the filing by the Trust,
as may be appropriate, of an application to the PORTAL, the New York Stock
Exchange or any other national stock exchange or the Nasdaq National Market for
listing or quotation upon notice of issuance of any Capital Securities; and
(d) to negotiate the terms of the Purchase Agreement, the
Registration Agreement and other related agreements providing for the sale of
the Capital Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees. The number of Trustees
initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a majority in
liquidation amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities; provided, however, that, the number of
Trustees shall in no event be less than two (2); provided, further, that (1)
there shall be a Delaware Trustee if required by Section 5.2; (2) there shall be
at least one Trustee who is an employee or officer of, or is affiliated with the
Sponsor (a "Regular Trustee"); and (3) one Trustee shall be the Institutional
Trustee, and such Trustee may also serve as Delaware Trustee if
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it meets the applicable requirements, in which case Section 3.11 shall have no
application to such entity in its capacity as Institutional Trustee.
SECTION 5.2 Delaware Trustee. If required by the Business
Trust Act, one Trustee (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the requirements
of applicable law.
SECTION 5.3 Institutional Trustee; Eligibility. (a) There
shall at all times be one Trustee which shall act as Institutional Trustee which
shall:
(i) not be an Affiliate of the Sponsor; and
(ii) 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 Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act,
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 supervising or examining authority
referred to above, then for the purposes of this Section
5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.7(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Institutional Trustee and the Holder of the Common Securities
(as if it were the obligor referred to in Section 310(b) of the Trust Indenture
Act) shall in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.
(d) The Indenture, the Debt Securities (as defined therein)
issued or to be issued thereunder, the Declaration, the Securities issued or to
be issued hereunder and the Capital Securities Guarantees and Common Securities
Guarantees in connection therewith (including the Capital Securities Guarantee
in connection herewith) shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the proviso contained in Section
310(b)(1) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be The First
National Bank of Chicago.
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SECTION 5.4 Certain Qualifications of Regular Trustees and
Delaware Trustee Generally. Each Regular Trustee and the Delaware Trustee shall
be either a natural person who is at least 21 years of age or a legal entity
that shall act through one or more Authorized Officers.
SECTION 5.5 Regular Trustees. The initial Regular Trustees
shall be:
Jackson W. Moore, John W. Park and M. Kirk Walters.
(a) Except where a requirement for action by a specific number
of Regular Trustees is expressly set forth in this Declaration and except with
respect to any action the taking of which is the subject of a meeting of the
Regular Trustees any action required or permitted to be taken by the Regular
Trustees may be taken by, and any power of the Regular Trustees may be exercised
by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act or applicable law, any
Regular Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee. The initial Delaware Trustee
shall be First Chicago Delaware Inc.
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.7(b), Trustees may be appointed or removed without
cause at any time except during an Event of Default:
(i) until the issuance of any Securities, by
written instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of
the Holders of a Majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holders of
the Common Securities.
(b) (i) The Trustee that acts as Institutional Trustee
shall not be removed in accordance with Section 5.7(a) until a Successor
Institutional Trustee (a "Successor Institutional Trustee") has been appointed
and has accepted such appointment by written instrument executed by such
Successor Institutional Trustee and delivered to the Regular Trustees and the
Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall
not be removed in accordance with Section 5.7(a) until a
successor Trustee possessing the qualifications to act as
Delaware Trustee under Sections 5.2 and 5.4 (a "Successor
Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees and the
Sponsor.
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(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) no such resignation of the Trustee that acts as
the Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee
has been appointed and has accepted such appointment
by instrument executed by such Successor
Institutional Trustee and delivered to the Trust, the
Sponsor and the resigning Institutional Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the Holders of the Securities; and
(ii) no such resignation of the Trustee that acts as
the Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor Delaware
Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor
Institutional Trustee as the case may be if the Institutional Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with this
Section 5.7.
(e) If no Successor Institutional Trustee or Successor
Delaware Trustee shall have been appointed and accepted appointment as provided
in this Section 5.7 within 60 days after delivery of an instrument of
resignation or removal, the Institutional Trustee or Delaware Trustee resigning
or being removed, as applicable, may petition, at the expense of the Trust, any
court of competent jurisdiction for appointment of a Successor Institutional
Trustee or Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Institutional Trustee or Successor Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor Institutional Trustee
or Successor Delaware Trustee, as the case may be.
(g) Holders of Capital Securities will have no rights to
appoint or remove the Trustees, who may be appointed, removed or replaced solely
by the Holder of all of the Common Securities.
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SECTION 5.8 Vacancies Among Trustees. If a Trustee ceases to
hold office for any reason and the number of Trustees is not reduced pursuant to
Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1,
a vacancy shall occur. A resolution certifying the existence of such vacancy by
the Regular Trustees or, if there are more than two, a majority of the Regular
Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies. The death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity to perform the duties of a Trustee shall not operate to dissolve,
terminate or annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.7, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 5.10 Meetings. If there is more than one Regular
Trustee, meetings of the Regular Trustees shall be held from time to time upon
the call of any Regular Trustee. Regular meetings of the Regular Trustees may be
held at a time and place fixed by resolution of the Regular Trustees. Notice of
any in-person meetings of the Regular Trustees shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Regular
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration, any
action of the Regular Trustees may be taken at a meeting by vote of a majority
of the Regular Trustees present (whether in person or by telephone) and eligible
to vote with respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular Trustees. In
the event there is only one Regular Trustee, any and all action of such Regular
Trustee shall be evidenced by a written consent of such Regular Trustee.
SECTION 5.11 Delegation of Power. (a) Any Regular Trustee may,
by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 3.6, including any registration statement
or amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) the Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as
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the Regular Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as set
forth herein.
SECTION 5.12 Conversion, Consolidation or Succession to
Business. Any Person into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any Person succeeding to all or substantially
all the corporate trust business of the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Institutional Trustee
or the Delaware Trustee, as the case may be, hereunder, provided such Person
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions. Holders shall receive Distributions
(as defined herein) in accordance with the applicable terms of the relevant
Holder's Securities. Distributions shall be made on the Capital Securities and
the Common Securities in accordance with the preferences set forth in their
respective terms. If and to the extent that the Debenture Issuer makes a payment
of interest (including Compounded Interest (as defined in the Indenture),
Special Interest and Additional Interest (as defined in the Indenture)), premium
and/or principal on the Debentures held by the Institutional Trustee (the amount
of any such payment being a "Payment Amount"), the Institutional Trustee shall
and is directed, to the extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities. (a) The
Regular Trustees shall on behalf of the Trust issue one series of preferred
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Annex I (the "Initial Capital
Securities") and a second series of preferred securities representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I to be exchanged pursuant to the Registration Agreement for
Initial Capital Securities (the "Exchange Capital Securities" and together with
the Initial Capital Securities, the "Capital Securities") and one class of
common securities representing undivided beneficial interests in the assets of
the Trust having such terms as are set forth in Annex I (the "Common
Securities"). The Trust shall issue no securities or other interests in the
assets of the Trust other than the Capital Securities and the Common Securities
and the aggregate liquidation amount of all series of Securities issued by the
Trust and outstanding at any time shall not exceed $206,186,000. Capital
Securities rank pari passu and payment thereon shall be made Pro Rata with the
Common Securities except that,
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where an Event of Default has occurred and is continuing, the rights of Holders
of the Common Securities to payment in respect of Distributions and payments
upon liquidation, redemption and otherwise are subordinated to the rights to
payment of the Holders of the Capital Securities.
(b) The Certificates shall be signed on behalf of the Trust by
a Regular Trustee. Such signature shall be the facsimile or manual signature of
any present or any future Regular Trustee. In case any Regular Trustee of the
Trust who shall have signed any of the Securities shall cease to be such Regular
Trustee before the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Regular Trustee; and any Certificate may
be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be the Regular Trustees of the Trust, although
at the date of the execution and delivery of the Declaration any such person was
not such a Regular Trustee. A Capital Security shall not be valid until
authenticated by the manual signature of an authorized officer of the
Institutional Trustee. Such signature shall be conclusive evidence that the
Capital Security has been authenticated under this Declaration. Upon written
order of the Trust signed by one Regular Trustee, the Institutional Trustee
shall authenticate the Capital Securities for original issue. The Institutional
Trustee may appoint an authenticating agent acceptable to the Trust to
authenticate the Capital Securities. A Common Security need not be so
authenticated.
(c) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder or a
Capital Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration and the Capital Securities
Guarantee.
SECTION 7.2 Paying Agent, Transfer Agent and Registrar. The
Trust shall maintain in the Borough of Manhattan, City of New York, State of New
York, an office or agency where Securities may be presented for payment ("Paying
Agent") and an office or agency where Securities may be presented for
registration of transfer or exchange (the "Transfer Agent"). The Trust shall
keep or cause to be kept at such office or agency a register for the purpose of
registering Securities and transfers and exchanges of Securities, such register
to be held by a registrar (the "Registrar"). The Trust may appoint the Paying
Agent, the Registrar, the Transfer Agent and may appoint one or more additional
paying agents or one or more co-registrars or one or more co-transfer agents, in
such other locations as it shall determine. The term "Paying Agent" includes any
additional paying agent, the term "Registrar" includes any additional registrar
and the term "Transfer Agent" includes any co-transfer agent. The Trust may
change any Paying Agent without prior notice to any Holder. The Trust shall
notify the Institutional Trustee of the name and address of any Paying Agent,
Transfer Agent and Registrar not a party to this Declaration. The Trust has
appointed the Institutional Trustee to act as Paying Agent, Transfer Agent and
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Registrar for the Capital Securities and the Common Securities. The Trust or any
of its Affiliates may act as Paying Agent, Transfer Agent or Registrar.
SECTION 7.3 Form and Dating. The Initial Capital Securities
and the Institutional Trustee's certificate of authentication shall be
substantially in the form of Exhibit A-1, the Exchange Capital Securities and
the Institutional Trustee's certificate of authentication shall be substantially
in the form of Exhibit A-2 and the Common Securities shall be substantially in
the form of Exhibit A-3, each of which is hereby incorporated in and expressly
made a part of this Declaration. Certificates may be typed, printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as conclusively evidenced by their execution
thereof. The Securities may have letters, numbers, notations or other marks of
identification or designation and such legends or endorsements required by law,
stock exchange rule, the Depositary, agreements to which the Trust is subject,
if any, or usage (provided that any such notation, legend or endorsement is in a
form acceptable to the Trust). The Trust at the direction of the Sponsor shall
furnish any such legend not contained in Exhibit A-1, A-2 or A-3 to the
Institutional Trustee in writing. Each Capital Security shall be dated the date
of its authentication. The terms and provisions of the Securities set forth in
Annex I and the forms of Securities set forth in Exhibits A-1, A-2 and A-3 are
part of the terms of this Declaration and to the extent applicable, the
Institutional Trustee, the Delaware Trustee, the Regular Trustees and the
Sponsor, by their execution and delivery of this Declaration, expressly agree to
such terms and provisions and to be bound thereby. Capital Securities will be
issued only in blocks having a stated liquidation amount of not less than
$100,000.
(a) Global Capital Securities.
(i) The Initial Capital Securities are being offered
and sold by the Trust pursuant to the Purchase Agreement. The
Initial Capital Securities offered and sold to Qualified
Institutional Buyers ("QIBs") in reliance on Rule 144A as
provided in the Purchase Agreement, shall be issued in the
form of one or more permanent global Securities in definitive,
fully registered form without distribution coupons with the
appropriate global legends and the Restricted Securities
Legend (each, a "Rule 144A Global Capital Security"), which
shall be deposited on behalf of the purchasers of the Initial
Capital Securities represented thereby with the Institutional
Trustee, at its New York office, as custodian for the
Depositary, and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Trust and
authenticated by the Institutional Trustee as hereinafter
provided. The number of Initial Capital Securities represented
by the Rule 144A Global Capital Security may from time to time
be increased or decreased by adjustments made on the records
of the Institutional Trustee and the Depositary or its nominee
as hereinafter provided.
(ii) In the event the Initial Global Capital Security
is tendered in a Registered Exchange Offer, it shall be
exchanged for interests in a single, permanent global security
in definitive, fully registered form without distribution
coupons. Upon issuance such Exchange Global Capital Security
shall be deposited
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on behalf of the holders of the Exchange Capital Securities
represented thereby with the Institutional Trustee, at its New
York office, as custodian for the Depositary, and registered
in the name of the Depositary or a nominee of the Depositary,
duly executed by the Trust and authenticated by the
Institutional Trustee as hereinafter provided.
(b) Book-Entry Provisions. This Section 7.3(b) shall apply
only to Global Capital Securities as may be authorized by the Trust to be
deposited with or on behalf of the Depositary. The Trust shall execute and the
Institutional Trustee shall, in accordance with this Section 7.3, authenticate
and deliver initially one or more Global Capital Securities that (a) shall be
registered in the name of Cede & Co. or other nominee of such Depositary and (b)
shall be delivered by the Institutional Trustee to such Depositary or pursuant
to such Depositary's instructions or held by the Institutional Trustee as
custodian for the Depositary. Clearing Agency Participants shall have no rights
under this Declaration with respect to any Global Capital Security held on their
behalf by the Depositary or by the Institutional Trustee as the custodian of the
Depositary or under such Global Capital Security, and the Depositary may be
treated by the Trust, the Institutional Trustee and any agent of the Trust or
the Institutional Trustee as the absolute owner of such Global Capital Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Trust, the Institutional Trustee or any agent of the Trust or the
Institutional Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and the Clearing Agency Participants, the operation of customary
practices of such Depositary governing the exercise of the rights of a holder of
a beneficial interest in any Global Capital Security.
(c) Definitive Capital Securities.
(i) Except as provided in Section 7.5 and Section
9.2(e), owners of beneficial interests in the Rule 144A Global
Capital Security will not be entitled to receive physical
delivery of Definitive Capital Securities. Purchasers of
Initial Securities who are institutional "accredited
investors" (as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) ("IAIs"), but are not QIBs will
receive Initial Capital Securities in the form of individual
certificates in definitive, fully registered form without
distribution coupons and with the Restricted Securities Legend
("Restricted Definitive Capital Securities"); provided,
however, that upon transfer of such Restricted Definitive
Capital Securities to a QIB, such Restricted Definitive
Capital Securities will, unless the Rule 144A Global Capital
Security has previously been exchanged, be exchanged for an
interest in a Rule 144A Global Capital Security pursuant to
the provisions set forth in Section 9.2. Restricted Definitive
Capital Securities will bear the Restricted Securities Legend
unless removed in accordance with this Section 7.3 or Section
9.2.
ii) In the event Initial Definitive Capital
Securities are tendered in a Registered Exchange Offer, they
will be exchanged for certificated securities in definitive,
fully registered form, without coupons and without the
Restricted
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Securities Legend; or, at the option of the Holder, as an
interest in the Exchange Global Capital Security issued
pursuant to Section 7.1(a).
SECTION 7.4 Mutilated, Destroyed, Lost or Stolen Certificates.
If: (a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees and the
Institutional Trustee such security or indemnity as may be required by them to
keep each of them harmless; then, in the absence of notice that such Certificate
shall have been acquired by a bona fide purchaser, any Regular Trustee on behalf
of the Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 9.8, the Regular Trustees may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 7.5 Temporary Securities.
Until definitive Securities are ready for delivery, the Trust
may prepare and, in the case of the Capital Securities, the Institutional
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in form of definitive Securities but may have variations that the
Trust considers appropriate for temporary Securities. Without unreasonable
delay, the Trust shall prepare and, in the case of the Capital Securities, the
Institutional Trustee shall authenticate definitive Securities in exchange for
temporary Securities.
SECTION 7.6 Cancellation.
The Trust at any time may deliver Securities to the
Institutional Trustee for cancellation. The Registrar shall forward to the
Institutional Trustee any Securities surrendered to it for registration of
transfer, redemption or payment. The Institutional Trustee shall promptly cancel
all Securities surrendered for registration of transfer, payment, replacement or
cancellation and shall dispose of canceled Securities as the Trust directs. The
Trust may not issue new Securities to replace Securities that it has paid or
that have been delivered to the Institutional Trustee for cancellation.
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust. (a) The
Trust shall dissolve:
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(i) unless earlier terminated, on December 31,
2051, the expiration of the term of the Trust;
(ii) upon a Bankruptcy Event with respect to the
Sponsor, the Trust or the Debenture Issuer;
(iii) (other than in connection with a merger,
consolidation or similar transaction not prohibited by the
Indenture, this Declaration or the Securities Guarantees, as
the case may be) upon the filing of a certificate of
dissolution or its equivalent with respect to the Sponsor;
upon the consent of Holders of a Majority in liquidation
amount of the Securities voting together as a single class to
file a certificate of cancellation with respect to the Trust
or upon the revocation of the charter of the Sponsor and the
expiration of 90 days after the date of revocation without a
reinstatement thereof;
(iv) upon exercise of the right of the holder of all
of the outstanding Common Securities to dissolve the Trust as
provided in Annex I hereto;
(v) upon the entry of a decree of judicial
dissolution of the Holder of the Common Securities, the
Sponsor, the Trust or the Debenture Issuer;
(vi) when all of the Securities shall have been
called for redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders in accordance with
the terms of the Securities; or
(vii) before the issuance of any Securities, with
the consent of all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), and after satisfaction of liabilities to
creditors of the Trust, and subject to the terms set forth in Annex I, the
Trustees shall terminate the Trust by filing a certificate of cancellation with
the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive
the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 General. (a) Where Capital Securities are
presented to the Registrar or a co-registrar with a request to register a
transfer or to exchange them for an equal number of Capital Securities
represented by different certificates, the Registrar shall register the transfer
or make the exchange if its requirements for such transactions are met. To
permit registrations of transfer and exchanges, the Trust shall issue and the
Institutional Trustee, shall authenticate Capital Securities at the Registrar's
request.
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(b) Common Securities may not be transferred, except by
operation of law.
(c) Capital Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this Declaration
and in the terms of the Securities, provided, however, that Capital Securities
may be transferred only in blocks having a stated liquidation amount of not less
than $100,000 (i.e., 100 Capital Securities). Any transfer or purported transfer
of any Security not made in accordance with this Declaration shall be null and
void and will be deemed to be of no legal effect whatsoever and any such
transferee shall be deemed not to be the holder of such Capital Securities for
any purpose, including but not limited to the receipt of Distributions on such
Capital Securities, and such transferee shall be deemed to have no interest
whatsoever in such Capital Securities.
(d) The Regular Trustees shall provide for the registration of
Securities and of transfers of Securities, which will be effected without charge
but only upon payment (with such indemnity as the Trust or the Sponsor may
require) in respect of any tax or other governmental charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Securities, the Regular Trustees shall cause one or more new Securities to be
issued in the name of the designated transferee or transferees. Every Security
surrendered for registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Security surrendered for registration of transfer shall be canceled by the
Regular Trustees. A transferee of a Security shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Security. By acceptance of a Security, each transferee shall be
deemed to have agreed to be bound by this Declaration.
(e) The Trust shall not be required (i) to issue, register the
transfer of, or exchange, any Capital Securities during a period beginning at
the opening of business 15 days before the day of any selection of Capital
Securities for redemption and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to have been given to
all Holders of Capital Securities to be redeemed, or (ii) to register the
transfer or exchange of any Capital Security so selected for redemption in whole
or in part, except the unredeemed portion of any Capital Security being redeemed
in part.
SECTION 9.2 Transfer Procedures and Restrictions.
(a) General.
(i) If Initial Capital Securities are issued upon the
transfer, exchange or replacement of Initial Capital
Securities bearing the Restricted Securities Legend, or if a
request is made to remove such Restricted Securities Legend on
Initial Capital Securities, the Initial Capital Securities so
issued shall bear the Restricted Securities Legend, or the
Restricted Securities Legend shall not be removed, as the case
may be, unless there is delivered to the Trust such
satisfactory evidence, which may include an opinion of counsel
licensed to practice law in the State of New York, as may be
reasonably required by the Trust, that neither the legend nor
the restrictions on transfer set forth therein are required to
ensure that transfers
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thereof comply with the provisions of Rule 144A or Rule 144
under the Securities Act or, with respect to Restricted
Capital Securities, that such Securities are not "restricted"
within the meaning of Rule 144 under the Securities Act. Upon
provision of such satisfactory evidence, the Institutional
Trustee, at the written direction of the Trust, shall
authenticate and deliver Capital Securities that do not bear
the legend.
(ii) If a transfer of Initial Capital Securities is
made pursuant to an effective Shelf Registration Statement,
the Restricted Securities Legend shall be removed from such
Initial Capital Securities so transferred at the request of
the Holder.
(iii) Any Initial Capital Securities which are
presented to the Registrar for exchange pursuant to a
Registered Exchange Offer shall be exchanged for Exchange
Capital Securities of equal liquidation amount upon surrender
to the Registrar of the Initial Capital Securities to be
exchanged in accordance with the terms of the Registered
Exchange Offer; provided that the Initial Capital Securities
so surrendered for exchange are duly endorsed and accompanied
by a letter of transmittal or written instrument of transfer
in form satisfactory to the Institutional Trustee and the
Registrar and duly executed by the Holder thereof or such
Holder's attorney who shall be duly authorized in writing to
execute such document on the behalf of such Holder.
(b) Transfer and Exchange of Definitive Capital Securities.
When Initial Definitive Capital Securities or Exchange Definitive Capital
Securities are presented to the Registrar or co-registrar
(x) to register the transfer of such Initial
Definitive Capital Securities or Exchange Definitive Capital
Securities; or
(y) to exchange such Initial Definitive Capital
Securities or Exchange Definitive Capital Securities for an equal
number of Initial Definitive Capital Securities or Exchange Definitive
Capital Securities, respectively, of another number,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Capital Securities surrendered for
transfer or exchange:
(i) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory
to the Trust and the Registrar or co-registrar, duly executed
by the Holder thereof or his attorney duly authorized in
writing; and
(ii) in the case of Initial Definitive Capital
Securities that are Restricted Definitive Capital Securities,
are being transferred or exchanged pursuant to an effective
registration statement under the Securities Act or pursuant to
clause (A),
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(B), (C) or (D) below, and are accompanied by the following
additional information and documents, as applicable:
(A) if such Restricted Definitive Capital
Securities are being delivered to the Registrar by a
Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to
that effect;
(B) if such Restricted Definitive Capital
Securities are being transferred pursuant to an
exemption from registration in accordance with Rule
144 under the Securities Act: (i) a certification to
that effect (in the form set forth on the reverse of
the Initial Capital Security) and (ii) if the Trust
so requests, evidence reasonably satisfactory to the
Trust as to the compliance with the restrictions set
forth in the Restricted Securities Legend;
(C) if such Restricted Definitive Capital
Securities are transferred to QIBs in accordance with
Rule 144A under the Securities Act, the transferee
QIBs must take delivery of their interests in the
Capital Securities in the form of a beneficial
interest in the Rule 144A Global Capital Security in
accordance with Section 9.2(c); or
(D) if such Restricted Definitive Capital
Securities are being transferred to a Person who is
an IAI, but is not a QIB, upon the delivery of a
certificate by the transferee IAI substantially in
the form of Exhibit B hereto and such other opinion,
certification and/or other information as may be
reasonably required by the Trust or the Sponsor, the
Institutional Trustee shall cancel or cause to be
canceled such Restricted Definitive Securities being
transferred and concurrently therewith, the Trust
shall issue and the Institutional Trustee shall
authenticate, upon written order of any Regular
Trustee, an appropriate number of Restricted
Definitive Capital Securities.
(c) Restrictions on Transfer of an Initial Definitive Capital
Security for a Beneficial Interest in an Initial Global Capital Security. An
Initial Definitive Capital Security may not be exchanged for a beneficial
interest in an Initial Global Capital Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Institutional Trustee of an
Initial Definitive Capital Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Trust, together with:
(i) if such Initial Definitive Capital Security is a
Restricted Capital Security, certification, substantially in
the form set forth in Exhibit C hereto, that such Definitive
Capital Security is being transferred to a QIB in accordance
with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Capital Security
is a Restricted Capital Security, written instructions
directing the Institutional Trustee to make, or
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to direct the Depositary to make, an adjustment on its books
and records with respect to such Initial Global Capital
Security to reflect an increase in the number of the Initial
Capital Securities represented by the Initial Global Capital
Security,
then the Institutional Trustee shall cancel such Initial Definitive Capital
Security and cause, or direct the Depositary to cause, the aggregate number of
Initial Capital Securities represented by the Global Capital Security to be
increased accordingly. If no Initial Global Capital Securities are then
outstanding, the Trust shall issue and the Institutional Trustee shall
authenticate, upon written order of any Regular Trustee, an appropriate number
of Initial Capital Securities in global form.
(d) Transfer and Exchange of Global Capital Securities. The
transfer and exchange of Initial Global Capital Securities or Exchange Global
Capital Securities or beneficial interests therein shall be effected through the
Depositary, in accordance with this Declaration (including applicable
restrictions on transfer set forth in the Restricted Securities Legend) and the
procedures of the Depositary therefor.
Notwithstanding any other provisions of this Declaration, a Global Capital
Security may not be transferred as a whole except by the Depositary to a nominee
of the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary.
(e) Transfer of a Beneficial Interest in a Global Capital
Security for a Definitive Capital Security.
(i) Any Person having a beneficial interest in an
Initial Global Capital Security that is being transferred or
exchanged pursuant to an effective registration statement
under the Securities Act or pursuant to clause (A) or (B)
below may upon request, and if accompanied by the information
specified below, exchange such beneficial interest for an
Initial Definitive Capital Security or an Exchange Definitive
Capital Security, as the case may be, representing the same
number of Initial Capital Securities or Exchange Capital
Securities, as the case may be. Upon receipt by the
Institutional Trustee from the Depositary or its nominee on
behalf of any Person having a beneficial interest in an
Initial Global Capital Security or an Exchange Global Capital
Security, as the case may be, of written instructions or such
other form of instructions as is customary for the Depositary
or the Person designated by the Depositary as having such a
beneficial interest in such Global Capital Security and in the
case of an Initial Global Security, the following additional
information and documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being
transferred pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act: (i) a certification to that effect
from the transferee or transferor and (ii) if the
Regular Trustees so request, additional evidence
reasonably satisfactory to them as to the compliance
with the restrictions set forth in the Restricted
Securities Legend,
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(B) if such beneficial interest is being
transferred to a Person who is an IAI, but is not a
QIB, upon the delivery of a certificate by the
transferee IAI substantially in the form of Exhibit B
hereto and such other opinion, certification and/or
other information as may be reasonably required by
the Trust and the Sponsor,
then the Institutional Trustee will cause, in accordance with
the standing instructions and procedures of the Depositary,
the aggregate liquidation amount of the Global Capital
Security to be reduced on its books and records and, following
such reduction, the Trust will issue and the Institutional
Trustee will authenticate and deliver an appropriate number of
Definitive Capital Securities.
(ii) Definitive Capital Securities issued in exchange
for a beneficial interest in a Global Capital Security
pursuant to this Section (c) shall be registered in such names
and in such authorized denominations as the Depositary,
pursuant to instructions from Clearing Agency Participants or
indirect participants or otherwise, shall instruct the
Institutional Trustee. The Institutional Trustee shall deliver
such Capital Securities to the persons in whose names such
Capital Securities are so registered in accordance with the
instructions of the Depositary.
(f) Authentication of Definitive Capital Securities. If at
any time:
(i) the Depositary notifies the Trust that the
Depositary is unwilling or unable to continue as Depositary
for the Global Capital Securities and a successor Depositary
for the Global Capital Securities is not appointed by the
Regular Trustees pursuant to Section 9.5 within 90 days after
delivery of such notice; or
(ii) the Trust, in its sole discretion, notifies the
Institutional Trustee in writing that it elects to cause the
issuance of Definitive Capital Securities under this
Declaration,
then the Trust will execute, and the Institutional Trustee, upon receipt of a
written order of the Trust signed by one Regular Trustee requesting the
authentication and delivery of Definitive Capital Securities to the Persons
designated by the Trust, will authenticate and deliver Definitive Capital
Securities, in an aggregate principal amount equal to the principal amount of
Global Capital Securities, in exchange for such Global Capital Securities.
(g) Legend.
(i) Except as permitted by Section 9.2(a), each
Initial Capital Security certificate evidencing the Rule 144A
Global Capital Securities and the Restricted Definitive
Capital Securities (and all Initial Capital Securities issued
in exchange therefor or substitution thereof) shall bear a
legend (the "Restricted Securities Legend") in substantially
the following form:
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH IS
THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH UNION PLANTERS CORPORATION (THE
"COMPANY") OR UNION PLANTERS CAPITAL TRUST A (THE "TRUST") OR
ANY AFFILIATE OF THE COMPANY OR THE TRUST WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE
COMPANY OR THE TRUST, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRANSFER AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH
THE DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM
THE COMPANY, THE TRUST OR THE TRANSFER AGENT. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTIONS TERMINATION DATE.
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(h) Cancellation or Adjustment of Global Capital Security. At
such time as all beneficial interests in a Global Capital Security have either
been exchanged for Definitive Capital Securities to the extent permitted by this
Declaration or redeemed, repurchased or canceled in accordance with the terms of
this Declaration, such Global Capital Security shall be returned to the
Depositary for cancellation or retained and canceled by the Institutional
Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Capital Security is exchanged for Definitive Capital Securities, Capital
Securities represented by such Global Capital Security shall be reduced and an
adjustment shall be made on the books and records of the Institutional Trustee
(if it is then the Securities Custodian for such Global Capital Security) with
respect to such Global Capital Security, by the Institutional Trustee to reflect
such reduction.
(i) Obligations with Respect to Transfers and Exchanges
of Capital Securities.
(i) To permit registrations of transfers and
exchanges, the Trust shall execute and the Institutional
Trustee shall authenticate Definitive Capital Securities and
Global Capital Securities at the Registrar's request;
(ii) Registrations of transfers or exchanges will be
effected without charge, but only upon payment (with such
indemnity as the Trust or the Sponsor may require) in respect
of any tax or other governmental charge that may be imposed in
relation to it;
(iii) The Registrar or co-registrar shall not be
required to register the transfer of or exchange of (A) any
Capital Security during a period beginning at the opening of
business 15 days before the day of any selection of Capital
Securities for redemption and ending at the close of business
on the earliest date on which the relevant notice of
redemption is deemed to have been given to all Holders of
Capital Securities to be redeemed, and (B) any Capital
Security so selected for redemption in whole or in part,
except the unredeemed portion of any Capital Security being
redeemed in part; or
(iv) All Capital Securities issued upon any transfer
or exchange pursuant to the terms of this Declaration shall
evidence the same security and shall be entitled to the same
benefits under this Declaration as the Capital Securities
surrendered upon such transfer or exchange.
SECTION 9.3 Deemed Security Holders. The Trust, the Trustees,
the Paying Agent, the Transfer Agent or the Registrar may treat the Person in
whose name any Certificate shall be registered on the books and records of the
Trust as the sole holder of such Certificate and of the Securities represented
by such Certificate for purposes of receiving Distributions and for all other
purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such Certificate or in the Securities
represented by such Certificate on the part of any Person, whether or not the
Trust, the Trustees, the Paying Agent, the Transfer Agent or the Registrar shall
have actual or other notice thereof.
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SECTION 9.4 Notices to Clearing Agency. Whenever a notice or
other communication to the Capital Security Holders is required under this
Declaration, unless and until Definitive Capital Securities shall have been
issued to the beneficial owners of Capital Securities pursuant to Section 9.2(e)
or Section 9.2(f), the Regular Trustees shall give all such notices and
communications specified herein to be given to the Capital Security Holders to
the Clearing Agency, and shall have no notice obligations to the beneficial
owners of Capital Securities.
SECTION 9.5 Appointment of Successor Clearing Agency. If any
Clearing Agency elects to discontinue its services as securities depositary with
respect to the Capital Securities, the Regular Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to such Capital
Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability. (a) Except as expressly set forth in
this Declaration, the Securities Guarantees and the terms of the Securities, the
Sponsor shall not be:
(i) personally liable for the return of any portion
of the capital contributions (or any return thereon) of the
Holders of the Securities which shall be made solely from
assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or
otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the
Holder of the Common Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; provided,
however, that the Holder of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Capital Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss,
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damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence, if selected by such Indemnified Person, has
been selected by such Indemnified Person with reasonable care by or on behalf of
the Trust, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
SECTION 10.3 Fiduciary Duty. (a) To the extent that, at law or
in equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity (other than the duties imposed on the
Institutional Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of the Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any Holder of
Securities, the Indemnified Person shall resolve such conflict
of interest, take such action or provide such terms,
considering in each case the relative interest of each party
(including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any
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consideration to any interest of or factors affecting the
Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
SECTION 10.4 Indemnification. (a) (i) The Sponsor shall
indemnify, to the full extent permitted by law, any Company Indemnified Person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Trust) by reason of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees and expenses), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Company Indemnified Person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Trust to procure a judgment in its favor by reason of the fact
that he is or was a Company Indemnified Person against
expenses (including attorneys' fees and expenses) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue
or matter as to which such Company Indemnified Person shall
have been adjudged to be liable to the Trust unless and only
to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court
shall deem proper.
(iii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement of
an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section
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10.4 (a), or in defense of any claim, issue or matter therein,
he shall be indemnified, to the full extent permitted by law,
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and
(ii) of this Section 10.4(a) (unless ordered by a court) shall
be made by the Sponsor only as authorized in the specific case
upon a determination that indemnification of the Company
Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be made (1)
by the Regular Trustees by a majority vote of a Quorum
consisting of such Regular Trustees who were not parties to
such action, suit or proceeding, (2) if such a Quorum is not
obtainable, or, even if obtainable, if a Quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3) by the Common
Security Holder of the Trust.
(v) To the fullest extent permitted by law, expenses
(including attorneys' fees and expenses) incurred by a Company
Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4
(a) shall be paid by the Debenture Issuer in advance of the
final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Company
Indemnified Person to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the
Debenture Issuer as authorized in this Section 10.4 (a).
Notwithstanding the foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of a
Quorum of disinterested Regular Trustees, (ii) if such a
Quorum is not obtainable, or, even if obtainable, if a Quorum
of disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (iii) the Common
Security Holder of the Trust, that, based upon the facts known
to the Regular Trustees, counsel or the Common Security Holder
at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such
Person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or the Common
Security Holder reasonably determine that such Person
deliberately breached his duty to the Trust or its Common or
Capital Security Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 10.4 (a) shall not be deemed exclusive of any
other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors of the Sponsor
or Capital Security Holders of the Trust or otherwise, both as
to action in his official capacity and as to action
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in another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to
be provided by a contract between the Debenture Issuer and
each Company Indemnified Person who serves in such capacity at
any time while this Section 10.4 (a) is in effect. Any repeal
or modification of this Section 10.4(a) shall not affect any
rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase
and maintain insurance on behalf of any Person who is or was a
Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Sponsor
would have the power to indemnify him against such liability
under the provisions of this Section 10.4 (a).
(viii) For purposes of this Section 10.4 (a),
references to "the Trust" shall include, in addition to the
resulting or surviving entity, any constituent entity
(including any constituent of a constituent) absorbed in a
consolidation or merger, so that any Person who is or was a
director, trustee, officer or employee of such constituent
entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee
or agent of another entity, shall stand in the same position
under the provisions of this Section 10.4 (a) with respect to
the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence
had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a)
shall, unless otherwise provided when authorized or ratified,
continue as to a Person who has ceased to be a Company
Indemnified Person and shall inure to the benefit of the
heirs, executors and administrators of such a Person.
(b) To the fullest extent permitted by law, the Sponsor agrees
to indemnify the (i) Institutional Trustee, (ii) the Delaware Trustee, (iii) any
Affiliate of the Institutional Trustee and the Delaware Trustee, and (iv) any
officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Institutional Trustee and
the Delaware Trustee (each of the Persons in (i) through (iv) being referred to
as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, liability, damage, claim or expense
including taxes (other than taxes based on the income of such Fiduciary
Indemnified Person) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth in this
Section 10.4(b) shall survive the dissolution of the Trust and termination of
this Declaration and the removal or resignation of any Institutional Trustee or
Delaware Trustee, as the case may be.
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SECTION 10.5 Outside Businesses. Any Covered Person, the
Sponsor, the Delaware Trustee and the Institutional Trustee (subject to Section
5.3) may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Trust, and the Trust and the Holders of Securities shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor, the Delaware Trustee, or the
Institutional Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Institutional Trustee shall have the
right to take for its own account (individually or as a partner or fiduciary) or
to recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Institutional Trustee may engage or
be interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
SECTION 10.6 Compensation; Fees. The Sponsor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust); and
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Declaration (including the reasonable compensation and the expenses and
disbursements of their respective agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith.
The provisions of this Section 10.6 shall survive the
dissolution of the Trust and the termination of this Declaration and the removal
or resignation of any Trustee.
No Trustee may claim any lien or charge on any property of the
Trust as a result of any amount due pursuant to this Section 10.6.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year. The fiscal year ("Fiscal Year") of
the Trust shall be the calendar year, or such other year as is required by the
Code.
SECTION 11.2 Certain Accounting Matters. (a) At all times
during the existence of the Trust, the Regular Trustees shall keep, or cause to
be kept, full books of account, records and supporting documents, which shall
reflect in reasonable detail each transaction of the Trust. The books of account
shall be maintained on the accrual method of accounting, in accordance
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with generally accepted accounting principles, consistently applied. The books
of account and the records of the Trust shall be examined by and reported upon
as of the end of each Fiscal Year of the Trust by a firm of independent
certified public accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and shall
make available for the Holders of the Securities upon request from the Trust,
within 90 days after the end of each Fiscal Year of the Trust, annual financial
statements of the Trust, including a balance sheet of the Trust as of the end of
such Fiscal Year, and the related statements of income or loss.
(c) The Paying Agent shall cause to be duly prepared and
delivered to each of the Holders of Securities any annual United States federal
income tax information statement required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. The Paying Agent shall endeavor to
deliver all such statements within the time required by the Code.
(d) The Sponsor shall cause to be duly prepared and filed an
annual United States federal income tax return on a Form 1041 or such other form
required by United States federal income tax law, and any other annual income
tax returns required to be filed by the Sponsor on behalf of the Trust with any
state or local taxing authority.
SECTION 11.3 Banking. The Trust shall maintain one or more
bank accounts in the name and for the sole benefit of the Trust; provided,
however, that all payments of funds in respect of the Debentures held by the
Institutional Trustee shall be made directly to the Property Account and no
other funds of the Trust shall be deposited in the Property Account. The sole
signatories for such accounts shall be designated by the Regular Trustees;
provided, however, that the Institutional Trustee shall designate the
signatories for the Property Account.
SECTION 11.4 Withholding. The Trust and the Paying Agent shall
comply with all withholding requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Paying Agent
shall file required forms with applicable jurisdictions and, unless an exemption
from withholding is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the Trust is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Holder, the amount withheld
shall be deemed to be a Distribution in the amount of the withholding to the
Holder. In the event of any claimed overwithholding, Holders shall be limited to
an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
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ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments. (a) Except as otherwise provided in
this Declaration or by any applicable terms of the Securities, this Declaration
may only be amended by a written instrument approved and executed by
(i) the Regular Trustees (or, if there are more than
two Regular Trustees, a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Institutional
Trustee, the Institutional Trustee; and
(iii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee, the
Delaware Trustee.
(b) Notwithstanding any other provision of this Article XII,
no amendment shall be made, and any such purported amendment shall be void and
ineffective:
(i) unless the Institutional Trustee shall have first
received;
(A) an Officers' Certificate from each of
the Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
and
(B) an opinion of counsel (who may be
counsel to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to, the terms
of this Declaration (including the terms of the
Securities); and
(ii) if the result of such amendment would be to
(A) cause the trust to fail to continue to
be classified for purposes of United States federal
income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the
powers of the Institutional Trustee in contravention
of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under
the Investment Company Act.
(c) At such time after the Trust has issued any Securities
that remain outstanding, any amendment that would adversely affect the powers,
preferences or special rights of any Holder of Securities may be effected only
with such additional requirements as may be set forth in Annex I hereto.
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(d) Section 9.1(b) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities.
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities.
(f) the rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove,
Trustees shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Common Securities.
(g) Subject to this Section 12.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any
other provision of this Declaration;
(iii) add to the covenants, restrictions or
obligations of the Sponsor;
(iv) to conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material adverse
effect on the right, preferences or privileges of the Holders
of Securities; and
(v) to modify, eliminate and add to any provision of
this Declaration to such extent as may be necessary; provided,
however, that no such modification, elimination or addition
shall adversely affect the powers, preferences or special
rights of Holders of Securities.
SECTION 12.2 Meetings of the Holders of Securities; Action by
Written Consent. (a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading, if any. The Regular Trustees
shall call a meeting of the Holders of such class if directed to do so by the
Holders of at least 10% in liquidation amount of such class of Securities. Such
direction shall be given by delivering to the Regular Trustees one or more calls
in a writing stating that the signing Holders of Securities wish to call a
meeting and indicating the general or specific purpose for which the meeting is
to be called. Any Holders of Securities calling a meeting shall specify in
writing the Certificates held by the Holders of Securities exercising the right
to call a meeting and only those Securities represented by such Certificates
shall be counted for purposes of determining whether the required percentage set
forth in the second sentence of this paragraph has been met.
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(b) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all
the Holders of Securities having a right to vote thereat at
least 7 days and not more than 60 days before the date of such
meeting. Whenever a vote, consent or approval of the Holders
of Securities is permitted or required under this Declaration
or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading, if any, such
vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a
meeting if a consent in writing setting forth the action so
taken is signed by the Holders of Securities owning not less
than the minimum amount of Securities in liquidation amount
that would be necessary to authorize or take such action at a
meeting at which all Holders of Securities having a right to
vote thereon were present and voting. Prompt notice of the
taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not consented
in writing. The Regular Trustees may specify that any written
ballot submitted to the Security Holder for the purpose of
taking any action without a meeting shall be returned to the
Trust within the time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any
Person to act for it by proxy on all matters in which a Holder
of Securities is entitled to participate, including waiving
notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of 11
months from the date thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the pleasure of the
Holder of Securities executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were
a Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation; each meeting of the
Holders of the Securities shall be conducted by the Regular
Trustees or by such other Person that the Regular Trustees may
designate; and
(iii) unless the Business Trust Act, this
Declaration, the terms of the Securities, the Trust Indenture
Act or the listing rules of any stock exchange on which the
Capital Securities are then listed or trading otherwise
provides, the Regular Trustees, in their sole discretion,
shall establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on
by any Holders of Securities, waiver of any such notice,
action by consent without a meeting, the establishment of a
record date, Quorum requirements, voting in person or by proxy
or any other matter with respect to the exercise of any such
right to vote
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ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional
Trustee. The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee, that:
(a) the Institutional Trustee is a national banking
association with trust powers and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this Declaration;
(b) the execution, delivery and performance by the
Institutional Trustee of the Declaration has been duly authorized by all
necessary corporate action on the part of the Institutional Trustee. This
Declaration has been duly executed and delivered by the Institutional Trustee,
and it constitutes a legal, valid and binding obligation of the Institutional
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general principles of equity
(regardless of whether considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this
Declaration by the Institutional Trustee does not conflict with or constitute a
breach of the charter or by-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration
with or notice to, any New York State or federal banking authority is required
for the execution, delivery or performance by the Institutional Trustee of this
Declaration.
SECTION 13.2 Representations and Warranties of Delaware
Trustee. The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee, that:
(a) The Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware, with power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Declaration.
(b) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration. This
Declaration under Delaware law constitutes a legal, valid and binding obligation
of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency, and
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other similar laws affecting creditors' rights generally and to general
principles of equity (regardless of whether considered in a proceeding in equity
or at law).
(c) No consent, approval or authorization of, or registration
with or notice to, any federal or Delaware banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration.
(d) The Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware and, in either case, a
Person that satisfies for the Trust the requirements of Section 3807 of the
Business Trust Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices. All notices provided for in this
Declaration shall be in writing, duly signed by the party giving such notice,
and shall be delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the Securities and the Institutional
Trustee):
Union Planters Capital Trust A
c/o Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Attention: Secretary
Telecopy: (901) 383-6687
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as Delaware Trustee may give notice of to
the Holders of the Securities):
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
Attention: Michael J. Majchrzale
(c) if given to the Institutional Trustee, at the
Institutional Trustee's mailing address set forth below (or such other address
as the Institutional Trustee may give notice of to the Holders of the
Securities):
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The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice of to the Trust and the
Institutional Trustee):
Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Attention: Secretary
Telecopy: (901) 383-6687
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 14.2 Governing Law. This Declaration and the rights of
the parties hereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware and all rights and remedies shall be governed
by such laws without regard to the principles of conflict of laws of the State
of Delaware or any other jurisdiction that would call for the application of the
law of any jurisdiction other than the State of Delaware; provided, however,
that there shall not be applicable to the Trust, the Trustees or this
Declaration any provision of the laws (statutory or common) of the State of
Delaware pertaining to trusts (other than the Business Trust Act) that relate to
or regulate, in a manner inconsistent with the terms hereof (a) the filing with
any court or governmental body or agency of trustee accounts or schedules of
trustee fees and charges, (b) affirmative requirements to post bonds for
trustees, officers, agents or employees of a trust, (c) the necessity for
obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (d) fees or other sums
payable to trustees, officers, agents or employees of a trust, (e) the
allocation of receipts and expenditures to income or principal, (f) restrictions
or limitations on the permissible nature, amount or concentration of trust
investments or requirements relating to the titling, storage or other manner of
holding or investing trust assets or (g) the establishment of fiduciary or other
standards of responsibility or limitations on the acts or powers of trustees
that are inconsistent with the limitations or liabilities or authorities and
powers of the Trustees as set forth or referenced in this Declaration. Section
3540 of Title 12 of the Delaware Code shall not apply to the Trust.
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SECTION 14.3 Intention of the Parties. It is the intention of
the parties hereto that the Trust be classified for United States federal income
tax purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 14.4 Headings. Headings contained in this Declaration
are inserted for convenience of reference only and do not affect the
interpretation of this Declaration or any provision hereof.
SECTION 14.5 Successors and Assigns. Whenever in this
Declaration any of the parties hereto is named or referred to, the successors
and assigns of such party shall be deemed to be included, and all covenants and
agreements in this Declaration by the Sponsor and the Trustees shall bind and
inure to the benefit of their respective successors and assigns, whether or not
so expressed.
SECTION 14.6 Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 14.7 Counterparts. This Declaration may contain more
than one counterpart of the signature page and this Declaration may be executed
by the affixing of the signature of each of the Trustees to any of such
counterpart signature pages. All of such counterpart signature pages shall be
read as though one, and they shall have the same force and effect as though all
of the signers had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned have caused these presents
to be executed as of the day and year first above written.
/s/ Jackson W. Moore
-------------------------------------
Jackson W. Moore, as Regular Trustee
/s/ John W. Parker
-------------------------------------
John W. Parker, as Regular Trustee
/s/ M. Kirk Walters
-------------------------------------
M. Kirk Walters, as Regular Trustee
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
/s/ Melissa G. Weisman
By: ---------------------------------
Name: Melissa G. Weisman
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
/s/ Melissa G. Weisman
By: ---------------------------------
Name: Melissa G. Weisman
Title: Vice President
UNION PLANTERS CORPORATION,
as Sponsor
/s/ Benjamin W. Rawlins, Jr.
By: ---------------------------------
Name: Benjamin W. Rawlins, Jr.
Title: Chairman of the Board and
Chief Executive Officer
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ANNEX I
TERMS OF
8.20% CAPITAL TRUST PASS-THROUGH SECURITIES(SM) (TRUPS(SM))*
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of December 12, 1996 (as amended from time to
time, the "Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities and the
Common Securities are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration or, if not defined in the
Declaration, as defined in the Offering Memorandum referred to below):
1. Designation and Number. (a) Capital Securities. 200,000
Capital Securities of Union Planters Capital Trust A (the "Trust"), with an
aggregate stated liquidation amount with respect to the assets of the Trust of
two hundred million dollars ($200,000,000) and a stated liquidation amount with
respect to the assets of the Trust of $1,000 per Capital Security, are hereby
designated for the purposes of identification only as "8.20% Capital Trust
Pass-through Securities"(SM) (the "Capital Securities"). The Capital Security
Certificates evidencing the Capital Securities shall be substantially in the
forms of Exhibits A-1 and A-2 to the Declaration, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice or to conform to the rules of any stock exchange on which the
Capital Securities are listed, if any.
(b) Common Securities. 6,186 Common Securities of the Trust
(the "Common Securities"). The Common Security Certificates evidencing the
Common Securities shall be substantially in the form of Exhibit A-3 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
2. Distributions. (a) Distributions payable on each Security
will be fixed at a rate per annum of 8.20% (the "Coupon Rate") of the stated
liquidation amount of $1,000 per Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee. Except as set
forth below in respect of an Extension Period, Distributions in arrears for more
than one semiannual period will bear interest thereon compounded semiannually at
the Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and any such
compounded distributions payable unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debentures
held by the Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions payable for any period
will be computed for any full semiannual period on the basis of a 360-day year
of twelve 30-day months and the actual number of days elapsed per 30-day month.
- --------------------------
* Salomon Brothers Inc. has filed applications with the United States
Patent and Trademark Office for the registration of the "Capital Trust
Pass-through Securities" and the TruPS" service marks.
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(b) Distributions on the Securities will be cumulative, will
accrue from December 12, 1996, and will be payable, subject to extension of
distribution payment periods as described herein, semiannually in arrears on
June 15, and December 15 of each year, commencing on June 15, 1997 (each a
"Distribution Payment Date") when, as and if available for payment. The
Debenture Issuer has the right under the Indenture to defer payments of interest
on the Debentures by extending the interest payment period (each an "Extension
Period") at any time and from time to time on the Debentures, subject to the
conditions described below, although such interest would continue to accrue on
the Debentures at a rate of 8.20% per annum, compounded semiannually to the
extent permitted by law during any Extension Period. If such right is exercised,
semiannual distributions on the Securities will also be deferred (though such
distributions would continue to accrue at the distribution rate of 8.20% per
annum, compounded semiannually to the extent permitted by law) during any
Extension Period. Such right to extend any interest payment period in respect of
the Debentures is limited to Extension Periods, each not exceeding 10
consecutive semiannual periods, provided, however, that no Extension Period
shall be initiated while accrued interest from a prior, completed Extension
Period is unpaid or while the Debenture Issuer is in default in the payment of
interest that has become due and payable on the Debentures; and, provided,
further, that no Extension Period shall extend beyond the date of maturity of
the Debentures. In the event that the Debenture Issuer exercises this right,
then during any Extension Period (a) the Debenture Issuer shall not declare or
pay dividends on, make a distribution with respect to, or redeem, purchase or
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 Debenture Issuer of its
obligations under any employee benefit plans, (ii) as a result of a
reclassification of the Debenture Issuer's capital stock or rights to acquire
such capital stock or the exchange or conversion of one class or series of the
Debenture Issuer's capital stock or rights to acquire such capital stock for
another class or series of the Debenture Issuer's capital stock or rights to
acquire such capital stock, (iii) the purchase of fractional interests in shares
of the Debenture Issuer'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 Debenture Issuer's capital stock or
rights to acquire such capital stock with the Debenture Issuer's capital stock
or rights to acquire such capital stock, or (v) any declaration of a dividend in
connection with the implementation of that certain Share Purchase Rights Plan
adopted by the Board of Directors of the Debenture Issuer on January 19, 1989
relating to the designation and authorization of Series A Preferred Stock of the
Debenture Issuer (the "Share Purchase Rights Plan"), or the redemption or
repurchase of any rights pursuant thereto), or make guarantee payments with
respect to the foregoing, and (b) the Debenture Issuer shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by the Debenture Issuer that rank pari passu
with or junior to such Debentures. Prior to the termination of any such
Extension Period in respect of the Debentures, the Debenture Issuer may further
extend the interest payment period; provided that each such Extension Period in
respect of the Debentures, together with all such previous and further
extensions thereof, may not exceed 10 consecutive semiannual periods or extend
beyond the maturity of the Debentures. Upon the termination of any Extension
Period in respect of the Debentures and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the above
requirements. If Distributions are deferred, the
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Distributions due shall be paid on the date that the related Extension Period
terminates, or, if such date is not a Distribution Payment Date, on the
immediately following Distribution Payment Date, to Holders of the Securities as
they appear on the books and records of the Trust on the record date immediately
preceding such date. Distributions on the Securities must be paid on the dates
payable (after giving effect to any Extension Period) to the extent that the
Trust has funds available for the payment of such distributions in the Property
Account of the Trust. The Trust's funds available for Distribution to the
Holders of the Securities will be limited to payments received from the
Debenture Issuer in respect of the Debentures. The payment of Distributions out
of moneys held by the Trust is guaranteed by the Sponsor pursuant to the
Securities Guarantees.
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates. Such Distributions will be paid through the Institutional
Trustee who will hold amounts received in respect of the Debentures in the
Property Account for the benefit of the Holders of the Securities. While the
Capital Securities are held solely in book-entry only form, the relevant record
dates shall be one Business Day prior to the relevant payment dates which
payment dates correspond to the interest payment dates on the Debentures.
Subject to any applicable laws and regulations and the provisions of the
Declaration, each such payment in respect of the Capital Securities held in
book-entry form will be made as described under the heading "Description of the
Capital Securities -- Book-Entry Only Issuance -- The Depository Trust Company"
in the Offering Memorandum dated December 2, 1996 of the Trust (as supplemented,
the "Offering Memorandum"). The relevant record dates for the Common Securities
shall be the same record dates as for the Capital Securities. At any time when
the Capital Securities are not held solely in book-entry only form, the relevant
record dates shall be selected by the Regular Trustees, which dates shall be 15
days before the relevant payment dates. Payments in respect of Capital
Securities held in registered definitive form will be made by check to the
Holder entitled thereto. Distributions payable on any Securities that are not
punctually paid on any Distribution Payment Date, as a result of the Debenture
Issuer having failed to make a payment under the Debentures when due (taking
into account any Extension Period), will cease to be payable to the Person in
whose name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on which Distributions
are payable on the Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
(d) In the event that there is any money or other property
held by or for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata (as defined herein) among the Holders of the
Securities.
3. Liquidation Distribution Upon Dissolution. In the event of
any voluntary or involuntary dissolution of the Trust (each a "Liquidation"),
the Holders of the Securities on the
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date of the dissolution will be entitled to receive out of the assets of the
Trust available for distribution to Holders of Securities, after paying or
making reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act, an amount equal to
the aggregate of the stated liquidation amount of $1,000 per Security plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless in connection with such
Liquidation, Debentures in an aggregate stated principal amount equal to the
aggregate stated liquidation amount of, with identical premium if any, to, such
Securities, with an interest rate equal to the rate of, and bearing accrued and
unpaid interest in an amount equal to the accrued and unpaid Distributions on,
and having the same record date as, such Securities, after the payment or the
making of reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act, shall be distributed
on a Pro Rata basis to the Holders of the Securities in exchange for such
Securities.
The Sponsor, as the Holder of all of the outstanding Common
Securities, has the right at any time to dissolve the Trust (including, without
limitation, upon the occurrence of a Tax Event), subject to the receipt by the
Debenture Issuer of prior approval by the Federal Reserve if then required under
applicable guidelines or policies of the Federal Reserve, and, after paying or
making reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act, cause the Debentures
to be distributed to the Holders of the Securities on a Pro Rata basis.
The Trust shall dissolve (i) unless earlier terminated, on
December 31, 2051, the expiration of the term of the Trust, (ii) upon a
Bankruptcy Event with respect to the Sponsor, Trust or the Debenture Issuer,
(iii) (other than in connection with a merger, consolidation or similar
transaction not prohibited by the Indenture, the Declaration or the Securities
Guarantees, as the case may be) upon the filing of a certificate of dissolution
or its equivalent with respect to the Sponsor; upon the consent of the Holders
of a Majority in liquidation amount of the Securities voting together as a
single class to file a certificate of cancellation with respect to the Trust, or
upon the revocation of the charter of the Sponsor and the expiration of 90 days
after the date of revocation without a reinstatement thereof, (iv) upon exercise
of the right of the Holder of all of the outstanding Common Securities to
dissolve the Trust as described above, (v) upon the entry of a decree of a
judicial dissolution of the Sponsor, the Trust or the Debenture Issuer, (vi)
when all of the Securities shall have been called for redemption and the amounts
necessary for redemption thereof shall have been paid to the Holders in
accordance with the terms of the Securities, or (vii) before the issuance of any
Securities, with the consent of all of the Regular Trustees and the Sponsor. As
soon as practicable after the dissolution of the Trust and upon completion of
the winding up of the Trust, the Trust shall terminate upon the filing of a
certificate of cancellation with the Secretary of State of the State of
Delaware.
If a Liquidation of the Trust occurs as described in clause
(i), (ii), (iii) or (v) in the immediately preceding paragraph, the Trust shall
be liquidated by the Trustees of the Trust as expeditiously as such Trustees
determine to be possible by distributing, after paying or making reasonable
provision to pay all claims and obligations of the Trust in accordance with
Section 3808(e) of the Business Trust Act, to the Holders of the Securities, the
Debentures on a
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Pro Rata basis, unless such distribution is determined by the Institutional
Trustee not to be practical, in which event such Holders will be entitled to
receive out of the assets of the Trust available for distribution to the
Holders, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act, an amount equal to the Liquidation Distribution. An early Liquidation
of the Trust pursuant to clause (iv) above shall occur if the Regular Trustees
of the Trust determine that such Liquidation is possible by distributing, after
paying or making reasonable provision to pay all claims and obligations of the
Trust in accordance with Section 3808(e) of the Business Trust Act, to the
Holders of the Securities on a Pro Rata basis, the Debentures, and such
distribution occurs.
If, upon any such Liquidation the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis,
except that if an Event of Default has occurred and is continuing, the Capital
Securities shall have a preference over the Common Securities with regard to
such amounts.
Upon any such Liquidation of the Trust involving a
distribution of the Debentures, if at the time of such Liquidation, the Capital
Securities were rated by at least one nationally-recognized statistical rating
organization, the Debenture Issuer will use its reasonable best efforts to
obtain from at least one such or other rating organization a rating for the
Debentures.
After the date for any distribution of the Debentures upon
dissolution of the Trust, (i) the Securities of the Trust will be deemed to be
no longer outstanding, (ii) the Depositary or its nominee, as the record holder
of the Capital Securities, will receive a registered security in global form or
certificates representing the Debentures to be delivered upon such distribution,
and (iii) any certificates representing the Capital Securities not held by the
Depositary or its nominee will be deemed to represent undivided beneficial
interests in such of the Debentures as have an aggregate principal amount equal
to the aggregate stated liquidation amount of, with an interest rate identical
to the distribution rate of, and bearing accrued and unpaid interest equal to
accrued and unpaid distributions on, the Securities until such certificates are
presented to the Debenture Issuer or its agent for transfer or reissuance.
4. Redemption and Distribution. (a) If the Debenture Issuer
redeems the Debentures, the Trust shall redeem, on a Pro Rata basis, its
Securities at a redemption price (the "Redemption Price") equal to (i) $1,000
per Security in the case of redemptions of the Debentures in certain
circumstances described below upon the occurrence of a Tax Event or (ii) other
than in certain circumstances upon the occurrence of a Tax Event an amount per
Security equal to the product of $1,000 and the percentage used to determine the
call price for the Debentures being redeemed as specified below:
<TABLE>
<CAPTION>
If redeemed during the 12-month period beginning, December 15, call price
- -------------------------------------------------------------- ----------
<S> <C>
2006.......................................................... 103.8340%
2007.......................................................... 103.4506
2008.......................................................... 102.0672
</TABLE>
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<TABLE>
<CAPTION>
If redeemed during the 12-month period beginning, December 15, call price
- -------------------------------------------------------------- ----------
<S> <C>
2009.......................................................... 102.6838
2010.......................................................... 102.3004
2011.......................................................... 101.9170
2012.......................................................... 101.5336
2013.......................................................... 101.1502
2014.......................................................... 100.7668
2015.......................................................... 100.3834
</TABLE>
and thereafter at 100% of the principal amount of the Debentures, together, in
each case, with accrued and unpaid Distributions thereon to the date fixed for
redemption provided, however, that Holders of the Securities shall be given not
less than 30 nor more than 60 days' notice of such redemption (other than at the
stated maturity of the Debentures). In each case, the right of the Debenture
Issuer to redeem the Debentures is subject to the receipt by the Debenture
Issuer of prior approval by the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Capital Securities will be redeemed Pro
Rata and the Capital Securities to be redeemed will be as described in Section
4(e)(ii) below.
(c) If, at any time, a Tax Event (as defined below) shall
occur and be continuing and the Debenture Issuer receives an opinion (a
"Redemption Tax Opinion") of a nationally recognized independent tax counsel
experienced in such matters that, as a result of a Tax Event, there is more than
an insubstantial risk that the Debenture Issuer would be precluded from
deducting the interest on the Debentures for United States federal income tax
purposes even if the Debentures were distributed to the Holders of Securities in
liquidation of such Holders' interests in the Trust as described in this Section
4(c), the Debenture Issuer shall have the right at any time, subject to receipt
by the Debenture Issuer of prior approval by the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal Reserve,
within 90 days following the occurrence of such Tax Event, upon not less than 30
nor more than 60 days' notice, to redeem the Debentures in whole or in part for
cash, so long as such Tax Event is continuing, at the principal amount plus any
accrued and unpaid interest thereon to the dates of redemption (the "Tax Event
Redemption"), and, following such redemption, Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed shall be redeemed by the Trust at the Redemption Price on a Pro Rata
basis; provided, however, that, if (i) at the time there is available to the
Debenture Issuer or the Trust the opportunity to eliminate, within such 90 day
period, the adverse effects of the Tax Event by taking some ministerial action,
such as filing a form or making an election or pursuing some other similar
reasonable measure that will have no adverse effect on the Trust (a "Ministerial
Action"), the Debenture Issuer or the Holders of the Securities and (ii) if such
notice has not been given, the Trust or the Debenture Issuer will pursue such
Ministerial Action in lieu of redemption.
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"Tax Event" means that the Regular Trustees of the Trust shall
have received an opinion of a nationally recognized independent tax counsel to
the Debenture Issuer experienced in such matters (a "Dissolution Tax Opinion")
to the effect that, as a result of (a) any amendment to, clarification of or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, (b) any judicial decision, official
administrative pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action"), or (c) any amendment to,
clarification of, or change in the official position or the interpretation of
any Administrative Action or judicial decision that differs from the theretofore
generally accepted position, in each case, by any legislative body, court,
governmental authority or regulatory body, irrespective of the manner in which
such amendment, clarification or change is made known, which amendment,
clarification, or change is effective or such Administrative Action or decision
is announced, in each case, on or after the date of the Offering Memorandum,
there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date thereof, subject to United States federal income tax
with respect to interest accrued or received on the Debentures or subject to
more than a de minimus amount of other taxes, duties or other governmental
charges, (ii) any portion of interest payable by the Debenture Issuer to the
Trust on the Debentures is not, or within 90 days of the date thereof will not
be, deductible by the Debenture Issuer for United States federal income tax
purposes or (iii) the Debenture Issuer could become liable to pay, on the next
date on which any amount would be payable with respect to the Debentures, any
Additional Interest (as defined in the Indenture).
(d) The Trust may not redeem fewer than all the outstanding
Capital Securities unless all accrued and unpaid Distributions have been paid on
all Capital Securities for all semiannual Distribution periods terminating on or
before the date of redemption.
(e) Redemption or Distribution Procedures.
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail to
each Holder of Securities to be redeemed or exchanged not fewer than 30
nor more than 60 days before the date fixed for redemption or exchange
thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the
date of redemption or exchange and the dates on which notices are given
pursuant to this Section 4(e)(i), a Redemption/Distribution Notice
shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of such Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of
such Securities at the address of each such Holder appearing on the
books and records of the Trust. No defect in the Redemption/
Distribution Notice or in the mailing thereof with respect to any
Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder of
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Capital Securities; provided, however, that, in respect of Capital
Securities registered in the name of and held of record by the
Depositary or its nominee (or any successor Clearing Agency or its
nominee), the Capital Securities shall be redeemed in accordance with
the procedures of the Depositary (which may include redemption by lot),
and the distribution of the proceeds of such redemption will be made to
each Clearing Agency Participant (or Person on whose behalf such
nominee holds such Securities) in accordance with the procedures
applied by such Clearing Agency or nominee.
(iii) If Securities are to be redeemed and the Trust
gives a Redemption/ Distribution Notice, which notice may only be
issued if the Debentures are redeemed as set out in this Section 4
(which notice will be irrevocable), then (A) with respect to the
Capital Securities, while the Capital Securities are in book-entry only
form, provided that the Debenture Issuer has paid the Institutional
Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee
will deposit irrevocably with the Depositary or its nominee (or
successor Clearing Agency or its nominee), by 12:00 noon, New York City
time, on the redemption date, funds sufficient to pay the applicable
Redemption Price with respect to the Capital Securities and will give
the Depositary irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Capital Securities, and (B) with
respect to Capital Securities issued in definitive form and Common
Securities, provided that the Debenture Issuer has paid the
Institutional Trustee a sufficient amount of cash in connection with
the related redemption or maturity of the Debentures, the Institutional
Trustee will pay the relevant Redemption Price to the Holders of such
Securities by check mailed to the address of each such Holder appearing
on the books and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required then immediately prior to the close of business
on the date of such deposit Distributions will cease to accrue on the
Securities so called for redemption and all rights of Holders of such
Securities so called for redemption will cease, except the right of the
Holders of such Securities to receive the applicable Redemption Price
specified in Section 4(a), but without interest on such Redemption
Price. If any date fixed for redemption of Securities is not a Business
Day, then payment of any such Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay)
except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by the
Trust or by the Sponsor as guarantor pursuant to the relevant
Securities Guarantee, Distributions on such Securities will continue to
accrue at the then applicable rate from the original redemption date to
the actual date of payment, in which case the actual payment date will
be considered the date fixed for redemption for purposes of calculating
the Redemption Price. In the event of any redemption of Capital
Securities issued by the Trust in part, the Trust shall not be required
to (i) issue, register the transfer of or exchange any Security during
a period beginning at the opening of business 15 days before any
selection for redemption of Capital Securities and ending at the close
of business on the earliest date on
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which the relevant notice of redemption is deemed to have been given to
all Holders of Capital Securities to be so redeemed or (ii) register
the transfer of or exchange any Capital Securities so selected for
redemption, in whole or in part, except for the unredeemed portion of
any Capital Securities being redeemed in part.
(iv) Redemption/Distribution Notices shall be sent by
the Regular Trustees on behalf of the Trust to (A) in respect of the
Capital Securities, the Depositary or its nominee (or any successor
Clearing Agency or its nominee) if the Global Capital Securities have
been issued or, if Definitive Capital Securities have been issued, to
the Holders thereof, and (B) in respect of the Common Securities, to
the Holder thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States federal securities laws),
provided the acquiror is not the Holder of the Common Securities or the
obligor under the Indenture, the Sponsor or any of its subsidiaries may
at any time and from time to time purchase outstanding Capital
Securities by tender, in the open market or by private agreement.
5. Voting Rights - Capital Securities. (a) Except as provided
under Sections 5(b) and 7 and as otherwise required by law and the Declaration,
the Holders of the Capital Securities will have no voting rights. The Regular
Trustees are required to call a meeting of the Holders of the Capital Securities
if directed to do so by Holders of at least 10% in liquidation amount of the
Capital Securities.
(b) Subject to the requirements of obtaining a tax opinion by
the Institutional Trustee in certain circumstances set forth in the last
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Capital Securities, voting separately as a class, may direct, subject to the
last paragraph of Section 2.6(a) of the Declaration, the time, method, and place
of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the Institutional
Trustee, as holder of the Debentures, to (i) exercise the remedies available
under the Indenture as the holder of the Debentures, (ii) waive any past default
that is waivable under the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable or (iv) consent on behalf of all the holders of the Capital Securities
to any amendment, modification or termination of the Indenture or the Debentures
where such consent shall be required, provided, however, that, where a consent
or action under the Indenture would require the consent or act of the holders of
greater than a majority in principal amount of Debentures (a "Super Majority")
affected thereby, the Institutional Trustee may only give such consent or take
such action at the written direction of the Holders of at least the proportion
in aggregate liquidation amount of the Capital Securities outstanding which the
relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding. If the Institutional Trustee fails to enforce its rights
under the Debentures after the Holders of a Majority in liquidation amount of
such Capital Securities have so directed the Institutional Trustee, to the
fullest extent permitted by law, a Holder of the Capital Securities may
institute a legal proceeding directly against the Debenture Issuer to enforce
the Institutional Trustee's rights under the Debentures without first
instituting any legal proceeding against the
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Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Debenture Issuer to pay interest or
principal (or premium, if any) on the Debentures on the date the interest or
principal (or premium, if any) is payable (or in the case of redemption, the
redemption date), then a Holder of record of Capital Securities may directly
institute a proceeding for enforcement of payment, on or after the respective
due dates specified in the Debentures, to such Holder directly of the principal
of (or premium, if any) or interest on the Debentures having an aggregate
principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder. Subject to Section 2.7 of the Declaration, the
Institutional Trustee shall notify all Holders of the Capital Securities of any
default actually known to the Institutional Trustee with respect to the
Debentures unless (x) such defaults have been cured prior to the giving of such
notice or (y) the Institutional Trustee determines in good faith that the
withholding of such notice is in the interest of the Holders of the Capital
Securities, except where the default relates to the payment of principal of (or
premium, if any) or interest on any of the Debentures. Such notice shall state
that such Indenture Event of Default also constitutes an Event of Default
hereunder. Except with respect to directing the time, method and place of
conducting a proceeding for a remedy, the Institutional Trustee shall not take
any of the actions described in clauses (i), (ii) or (iii) above unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect that,
as a result of such action, the Trust will not be classified as other than a
grantor trust for United States federal income tax purposes.
A waiver of an Indenture Event of Default will constitute a
waiver of the corresponding Event of Default hereunder. Any required approval or
direction of Holders of Capital Securities may be given at a separate meeting of
Holders of Capital Securities convened for such purpose, at a meeting of all of
the Holders of Securities in the Trust or pursuant to written consent. The
Regular Trustees of the Trust will cause a notice of any meeting at which
Holders of Capital Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to be mailed to each
Holder of Capital Securities. Each such notice will include a statement setting
forth (i) the date of such meeting or the date by which such action is to be
taken, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or
consents. No vote or consent of the Holders of the Capital Securities will be
required for the Trust to redeem and cancel Capital Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
Notwithstanding that Holders of Capital Securities are
entitled to vote or consent under any of the circumstances described above, the
Capital Securities that are owned by the Sponsor or any Affiliate of the Sponsor
shall not entitle the Holder thereof to vote or consent and shall, for purposes
of such vote or consent, be treated as if such Capital Securities were not
outstanding.
Holders of Capital Securities will have no rights to appoint
or remove the Trustees, who may be appointed, removed or replaced solely by the
Holder of all of the Common Securities of the Trust.
I-10
<PAGE> 73
6. Voting Rights - Common Securities. (a) Except as
provided under Sections 6(b), 6(c) and 7 and as otherwise required by law and
the Declaration, the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to appoint, remove or
replace any Trustee.
(c) Subject to Section 2.6 of the Declaration and only after
each Event of Default (if any) with respect to the Capital Securities has been
cured, waived, or otherwise eliminated and subject to the requirements of the
second to last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class, may
direct the time, method, and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under the Declaration, including (i)
directing the time, method, place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or power conferred
on the Debenture Trustee with respect to the Debentures, (ii) waive any past
default and its consequences that is waivable under the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, provided, however, that, where a
consent or action under the Indenture would require a Super Majority, the
Institutional Trustee may only give such consent or take such action at the
written direction of the Holders of at least the proportion in liquidation
amount of the Common Securities which the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding. Notwithstanding
this Section 6(c), the Institutional Trustee shall not revoke any action
previously authorized or approved by a vote or consent of the Holders of the
Capital Securities. Other than with respect to directing the time, method and
place of conducting any proceeding for any remedy available to the Institutional
Trustee or the Debenture Trustee as set forth above, the Institutional Trustee
shall not take any action described in (i), (ii) or (iii) above, unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect that
for the purposes of United States federal income tax the Trust will not be
classified as other than a grantor trust on account of such action. If the
Institutional Trustee fails to enforce its rights under the Declaration, any
Holder of Common Securities may institute a legal proceeding directly against
any Person to enforce the Institutional Trustee's rights under the Declaration,
without first instituting a legal proceeding against the Institutional Trustee
or any other Person.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
I-11
<PAGE> 74
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
7. Amendments to Declaration and Indenture. (a) In addition to
any requirements under Section 12.1 of the Declaration, if any proposed
amendment to the Declaration provides for, or the Regular Trustees otherwise
propose to effect, (i) any action that would adversely affect the privileges,
preferences or special rights of the Securities, whether by way of amendment to
the Declaration or otherwise, or (ii) the dissolution, winding-up or termination
of the Trust, other than as described in Section 8.1 of the Declaration, then
the Holders of outstanding Securities, voting together as a single class, will
be entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of the Holders of at least a
Majority in liquidation amount of the Securities, affected thereby; provided,
however, if any amendment or proposal referred to in clause (i) above would
adversely affect only the Capital Securities or only the Common Securities, then
only the affected class will be entitled to vote on such amendment or proposal
and such amendment or proposal shall not be effective except with the approval
of a Majority in liquidation amount of such class of Securities.
(b) In the event the consent of the Institutional Trustee as
the holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification, or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
a Super Majority, the Institutional Trustee may only give such consent at the
direction of the Holders of at least the proportion in liquidation amount of the
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. The Institutional Trustee shall
not take any such action in accordance with the directions of the Holders of the
Securities unless the Institutional Trustee has obtained an opinion of tax
counsel to the effect that, as a result of such action, the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes.
(c) Notwithstanding the foregoing, no amendment or
modification may be made to the Declaration if such amendment or modification
would (i) cause the Trust to be classified for purposes of United States federal
income taxation as other than a grantor trust, (ii) reduce or otherwise
adversely affect the powers of the Institutional Trustee or (iii) cause the
Trust to be deemed an "investment company" which is required to be registered
under the Investment Company Act.
(d) Notwithstanding any provision of the Declaration, the
right of any Holder of Capital Securities to receive payment of distributions
and other payments upon redemption or otherwise, on or after their respective
due dates, or to institute a suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
I-12
<PAGE> 75
consent of such Holder. For the protection and enforcement of the foregoing
provision, each and every Holder of Capital Securities shall be entitled to such
relief as can be given either at law or equity.
8. Pro Rata. A reference in these terms of the Securities to
any payment, distribution or treatment as being "Pro Rata" shall mean pro rata
to each Holder of Securities according to the aggregate liquidation amount of
the Securities held by the relevant Holder in relation to the aggregate
liquidation amount of all Securities outstanding unless, in relation to a
payment, an Event of Default has occurred and is continuing, in which case any
funds available to make such payment shall be paid first to each Holder of the
Capital Securities pro rata according to the aggregate liquidation amount of
Capital Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Capital Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Capital Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding. In any such
proration, the Trust may make such adjustments as may be appropriate in order
that only Securities in denominations of $1,000 or integral multiples thereof
shall be redeemed.
9. Ranking. The Capital Securities rank pari passu and payment
thereon shall be made Pro Rata with the Common Securities except that, where an
Event of Default has occurred and is continuing, the rights of Holders of the
Common Securities to payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights to payment
of the Holders of the Capital Securities with the result that no payment of any
Distribution on, or Redemption Price of, any Common Security, and no other
payment on account of redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all outstanding Capital Securities for all distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all outstanding
Capital Securities then called for redemption, shall have been made or provided
for, and all funds immediately available to the Institutional Trustee shall
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, Capital Securities then due and payable.
10. Acceptance of Securities Guarantee and Indenture. Each
Holder of Capital Securities and Common Securities, by the acceptance of such
Securities, agrees to the provisions of the Capital Securities Guarantee and the
Common Securities Guarantee, respectively, including the subordination
provisions therein and to the provisions of the Indenture.
11. No Preemptive Rights. The Holders of the Securities
shall have no preemptive or similar rights to subscribe for any additional
securities.
12. Miscellaneous. These terms constitute a part of the
Declaration. The Sponsor will provide a copy of the Declaration, the Capital
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
I-13
<PAGE> 76
EXHIBIT A-1
FORM OF INITIAL CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[Include the following Restricted Securities Legend on all
Initial Capital Securities, including Rule 144A Global Capital Securities and
Restricted Definitive Capital Securities, unless otherwise determined by the
Sponsor in accordance with applicable law ----THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH UNION PLANTERS CORPORATION (THE
"COMPANY") OR UNION PLANTERS CAPITAL TRUST A (THE "TRUST") OR ANY AFFILIATE OF
THE COMPANY OR THE TRUST WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) (THE "RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE
COMPANY OR THE TRUST, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRANSER AGENT'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF WHICH MAY BE
OBTAINED FROM THE COMPANY, THE TRUST OR THE TRANSFER AGENT. THIS LEGEND WILL BE
A-1-1
<PAGE> 77
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION
DATE.]
[Include if Capital Security is in the form of a Restricted
Definitive Capital Security -- IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL
DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATE AND OTHER
INFORMATION AS MAY BE REQUIRED BY THE DECLARATION TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.]
[Include if Capital Security is in global form and The
Depository Trust Company is the Clearing Agency -- UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OF TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[Include if Capital Security is in global form -- TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO
BELOW.]
Certificate Number Number of Capital Securities
CUSIP NO ___________
Certificate Evidencing Capital Securities
of
UNION PLANTERS CAPITAL TRUST A
8.20% Capital Trust Pass-through Securities(SM) (TRUPS(SM))
(liquidation amount $1,000 per Capital Security)
UNION PLANTERS CAPITAL TRUST A, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that ______________ (the "Holder") is the registered owner of securities of the
Trust representing undivided beneficial
A-1-2
<PAGE> 78
interests in the assets of the Trust, designated the 8.20% Capital Trust
Pass-through Securities(SM) (liquidation amount $1,000 per Capital Security)
(the "Capital Securities"). Subject to the Declaration (as defined below), the
Capital Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this Certificate
duly endorsed and in proper form for transfer. The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities represented hereby are issued pursuant to, and shall in all
respects be subject to, the provisions of the Amended and Restated Declaration
of Trust of the Trust dated as of December 12, 1996, among Jackson W. Moore,
John W. Parker and M. Kirk Walters, as Regular Trustees, First Chicago Delaware
Inc., as Delaware Trustee, The First National Bank of Chicago, as Institutional
Trustee, Union Planters Corporation, as Sponsor and the holders from time to
time of undivided beneficial interests in the assets of the Trust, including
the designation of the terms of the Capital Securities as set forth in Annex I
to the Declaration, as the same may be amended from time to time (the
"Declaration"). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits
of the Capital Securities Guarantee to the extent provided therein. The Sponsor
will provide a copy of the Declaration, the Capital Securities Guarantee and
the Indenture to the Holder without charge upon written request to the Trust at
its principal place of business.
Upon receipt of this Security, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance of this Security, the Holder agrees to treat,
for United States federal income tax purposes, the Debentures as indebtedness
and the Capital Securities as evidence of beneficial ownership in the
Debentures.
This Capital Security is governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to principles
of conflict of laws.
IN WITNESS WHEREOF, the Trust has executed this certificate
this 9th day of December, 1996.
UNION PLANTERS CAPITAL TRUST A
By:
----------------------------
Name:
Title: Regular Trustee
A-1-3
<PAGE> 79
CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the
within-mentioned Declaration.
Dated:
------------------
THE FIRST NATIONAL BANK OF
CHICAGO, as Institutional Trustee
By:
----------------------------------
Name:
Title:
A-1-4
<PAGE> 80
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed
at a rate per annum of 8.20% (the "Coupon Rate") of the stated liquidation
amount of $1,000 per Capital Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee. Except as set
forth below in respect of an Extension Period, Distributions in arrears for more
than a semiannual period will bear interest thereon compounded semiannually at
the Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and any such
compounded interest payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed for any full semiannual Distribution
period on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the
Capital Securities will be cumulative, will accrue from the date of original
issuance and will be payable semiannually in arrears on June 15 and December 15
of each year, commencing on June 15, 1997. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period (each an "Extension Period") at any time and from time to time on
the Debentures, subject to certain conditions, although such interest would
continue to accrue on the Debentures at a rate of 8.20% per annum, compounded
semiannually to the extent permitted by law during any Extension Period. If such
right is exercised, semiannual Distributions on the Capital Securities will also
be deferred (though such Distributions would continue to accrue at the
distribution rate of 8.20% per annum, compounded semiannually to the extent
permitted by law) during any Extension Period. Such right to extend any
extension period is limited to Extension Periods, each not exceeding 10
consecutive semiannual periods, provided, however, that no Extension Period
shall be initiated while accrued interest from a prior, completed Extension
Period is unpaid or while the Debenture Issuer is in default in the payment of
interest that has become due and payable on the Debentures, and, provided,
further, that no Extension Period shall extend beyond the date of maturity of
the Debentures. Prior to the termination of any such Extension Period in respect
of the Debentures, the Debenture Issuer may further extend the interest payment
period; provided that each such Extension Period in respect of the Debentures,
together with all such previous and further extensions thereof, may not exceed
10 consecutive semiannual periods or extend beyond the maturity of the
Debentures. If Distributions are deferred, the Distributions due shall be paid
on the date that the related Extension Period terminates, or, if such date is
not a Distribution Payment Date, on the immediately following Distribution
Payment Date, to Holders of the Capital Securities as they appear on the books
and records of the Trust on the record date immediately preceding such date.
Distributions on the Capital Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such Distributions in the Property Account of the
Trust. The Trust's funds available for distribution to the Holders of the
Securities will be limited to payments received from the Debenture Issuer. The
payment of Distributions out of moneys held by the Trust is guaranteed by the
Sponsor pursuant to the Capital Securities Guarantee. The Capital Securities
shall be redeemable as provided in the Declaration.
A-1-5
<PAGE> 81
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security Certificate to:
------------------------------------------------
------------------------------------------------
------------------------------------------------
(Insert assignee's social security or tax identification
number)
------------------------------------------------
------------------------------------------------
------------------------------------------------
(Insert address and zip code of assignee) and irrevocably
appoints
------------------------------------------------
------------------------------------------------
------------------------------------------------
agent to transfer this Capital Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
------------------------------------------
Signature:
--------------------------------------
(Sign exactly as your name appears on the other side of this
Capital Security Certificate)
Signature Guarantee:(1)
----------------------------------------
- ------------------------
(1) Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Security registrar, which
requirements include membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Security registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
<PAGE> 82
EXHIBIT A-2
FORM OF EXCHANGE CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[Include if Capital Security is in global form and The
Depository Trust Company is the Clearing Agency -- UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[Include if Capital Security is in global form -- TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO
BELOW.]
Certificate Number Number of Capital Securities
CUSIP NO ___________
Certificate Evidencing Capital Securities
of
UNION PLANTERS CAPITAL TRUST A
8.20% Capital Trust Pass-through Securities(SM) (TRUPS(SM))
(liquidation amount $1,000 per Capital Security)
UNION PLANTERS CAPITAL TRUST A, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that ______________ (the "Holder") is the registered owner of securities of the
Trust representing undivided beneficial interests in the assets of the Trust,
designated the 8.20% Capital Trust Pass-through Securities(SM) (liquidation
amount $1,000 per Capital Security) (the "Capital Securities"). Subject to the
Declaration (as defined below), the Capital Securities are transferable on the
books and records of
A-2-1
<PAGE> 83
the Trust, in person or by a duly authorized attorney, upon surrender of this
Certificate duly endorsed and in proper form for transfer. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Capital Securities represented hereby are issued pursuant to, and shall
in all respects be subject to, the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of December 12, 1996, among Jackson
W. Moore, John W. Parker and M. Kirk Walters, as Regular Trustees, First Chicago
Delaware Inc., as Delaware Trustee, The First National Bank of Chicago, as
Institutional Trustee, Union Planters Corporation, as Sponsor and the holders
from time to time of undivided beneficial interests in the assets of the Trust,
including the designation of the terms of the Capital Securities as set forth
in Annex I to the Declaration, as the same may be amended from time to time
(the "Declaration"). Capitalized terms used herein but not defined shall have
the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Capital Securities Guarantee to the extent provided therein.
The Sponsor will provide a copy of the Declaration, the Capital Securities
Guarantee and the Indenture to the Holder without charge upon written request
to the Trust at its principal place of business.
Upon receipt of this Security, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance of this Security, the Holder agrees to treat,
for United States federal income tax purposes, the Debentures as indebtedness
and the Capital Securities as evidence of beneficial ownership in the
Debentures.
This Capital Security is governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to principles
of conflict of laws.
IN WITNESS WHEREOF, the Trust has executed this certificate
this 12th day of December, 1996.
UNION PLANTERS CAPITAL TRUST A
By:
--------------------------------
Name:
Title: Regular Trustee
A-2-2
<PAGE> 84
CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the
within-mentioned Declaration.
Dated:
-----------------
THE FIRST NATIONAL BANK OF CHICAGO, as
Institutional Trustee
By:
------------------------------------
Name:
Title:
A-2-3
<PAGE> 85
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed
at a rate per annum of 8.20% (the "Coupon Rate") of the stated liquidation
amount of $1,000 per Capital Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee. Except as set
forth below in respect of an Extension Period, Distributions in arrears for more
than a semiannual period will bear interest thereon compounded semiannually at
the Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and any such
compounded interest payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed for any full semiannual Distribution
period on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the
Capital Securities will be cumulative, will accrue from the date of original
issuance and will be payable semiannually in arrears on June 15 and December 15
of each year, commencing on June 15, 1997. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period (each an "Extension Period") at any time and from time to time on
the Debentures, subject to certain conditions, although such interest would
continue to accrue on the Debentures at a rate of 8.20% per annum, compounded
semiannually to the extent permitted by law during any Extension Period. If such
right is exercised, semiannual Distributions on the Capital Securities will also
be deferred (though such Distributions would continue to accrue at the
distribution rate of 8.20% per annum, compounded semiannually to the extent
permitted by law) during any Extension Period. Such right to extend any
extension period is limited to Extension Periods, each not exceeding 10
consecutive semiannual periods, provided, however, that no Extension Period
shall be initiated while accrued interest from a prior, completed Extension
Period is unpaid or while the Debenture Issuer is in default in the payment of
interest that has become due and payable on the Debentures, and, provided,
further, that no Extension Period shall extend beyond the date of maturity of
the Debentures. Prior to the termination of any such Extension Period in respect
of the Debentures, the Debenture Issuer may further extend the interest payment
period; provided that each such Extension Period in respect of the Debentures,
together with all such previous and further extensions thereof, may not exceed
10 consecutive semiannual periods or extend beyond the maturity of the
Debentures. If Distributions are deferred, the Distributions due shall be paid
on the date that the related Extension Period terminates, or, if such date is
not a Distribution Payment Date, on the immediately following Distribution
Payment Date, to Holders of the Capital Securities as they appear on the books
and records of the Trust on the record date immediately preceding such date.
Distributions on the Capital Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such Distributions in the Property Account of the
Trust. The Trust's funds available for distribution to the Holders of the
Securities will be limited to payments received from the Debenture Issuer. The
payment of Distributions out of moneys held by the Trust is guaranteed by the
Sponsor pursuant to the Capital Securities Guarantee. The Capital Securities
shall be redeemable as provided in the Declaration.
A-2-4
<PAGE> 86
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security Certificate to:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
(Insert assignee's social security or tax identification number)
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
(Insert address and zip code of assignee) and irrevocably appoints
agent to transfer this Capital Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
-------------------------------------------------------
Signature:
--------------------------------------------------
(Sign exactly as your name appears on the other side of this
Capital Security Certificate)
Signature Guarantee:(2)
-------------------------------------
(2) Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Security registrar, which
requirements include membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Security registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-2-5
<PAGE> 87
EXHIBIT A-3
FORM OF COMMON SECURITY CERTIFICATE
[THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN
EFFECTIVE REGISTRATION STATEMENT.]
[THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED, EXCEPT BY OPERATION OF LAW.]
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
UNION PLANTERS CAPITAL TRUST A
UNION PLANTERS CAPITAL TRUST A, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Union Planters Corporation (the "Holder") is the registered owner of common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust (the "Common Securities"). The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities represented hereby are issued pursuant to, and shall in all
respects be subject to, the provisions of the Amended and Restated Declaration
of Trust of the Trust dated as of December 12, 1996, among Jackson W. Moore,
John W. Park and M. Kirk Walters, as Regular Trustees, First Chicago Delaware
Inc., as Delaware Trustee, The First National Bank of Chicago, as Institutional
Trustee, Union Planters Corporation as Sponsor and the holders from time to time
of undivided beneficial interest in the assets of the Trust including the
designation of the terms of the Common Securities as set forth in Annex I to the
Declaration, as the same may be amended from time to time (the "Declaration").
Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The Holder is entitled to the benefits of the Common
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Common Securities Guarantee and the Indenture to
the Holder without charge upon written request to the Sponsor at its principal
place of business.
As set forth in the Declaration, where an Event of Default has
occurred and is continuing, the rights of Holders of Common Securities to
payment in respect of Distributions and payments upon Liquidation, redemption or
otherwise are subordinated to the rights of payment of Holders of the Capital
Securities.
Upon receipt of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
A-3-1
<PAGE> 88
By acceptance of this Certificate, the Holder agrees to treat,
for United States federal income tax purposes, the Debentures as indebtedness
and the Common Securities as evidence of undivided beneficial ownership in the
Debentures.
This Common Security is governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to principles
of conflict of laws.
IN WITNESS WHEREOF, the Trust has executed this certificate
this 12th day of December, 1996.
UNION PLANTERS CAPITAL TRUST A
By:
---------------------------------
Name:
Title: Regular Trustee
A-3-2
<PAGE> 89
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be
identical in amount to the Distributions payable on each Capital Security, which
is at a rate per annum of 8.20% (the "Coupon Rate") of the stated liquidation
amount of $1,000 per Capital Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee. Except as set
forth below in respect of an Extension Period, Distributions in arrears for more
than one semiannual period will bear interest thereon compounded semiannually at
the Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and any such
compounded distribution payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed for any full semiannual Distribution
period on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the
Common Securities will be cumulative, will accrue from the date of original
issuance and will be payable semiannually in arrears on June 15 and December 15
of each year, commencing on June 15, 1997. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending interest payment
period (each an "Extension Period") at any time and from time to time on the
Debentures, subject to certain conditions, although such interest would continue
to accrue on the Debentures at a rate of 8.20% per annum, compounded
semiannually to the extent permitted by law during any Extension Period. If such
right is exercised, semiannual distributions on the Common Securities will also
be deferred (though such Distributions would continue to accrue at the
Distribution rate of 8.20% per annum, compounded semiannually to the extent
permitted by law) during any Extension Period. Such right to extend any
extension period is limited to Extension Periods, each not exceeding 10
consecutive semiannual periods, provided, however, that no Extension Period
shall be initiated while accrued interest from a prior, completed Extension
Period is unpaid or while the Debenture Issuer is in default in the payment of
interest that has become due and payable on the Debentures; and, provided,
further, that no Extension Period shall extend beyond the date of maturity of
the Debentures. Prior to the termination of any such Extension Period in respect
of the Debentures, the Debenture Issuer may further extend the interest payment
period; provided that each such Extension Period in respect of the Debentures,
together with all such previous and further extensions thereof, may not exceed
10 consecutive semiannual periods or extend beyond the maturity of the
Debentures. Upon the termination of any Extension Period of the Debentures and
the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements. If Distributions are
deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates, or, if such date is not a Distribution Payment
Date, on the immediately following Distribution Payment Date, to Holders of the
Common Securities as they appear on the books and records of the Trust on the
record date immediately preceding such date. Distributions on the Common
Securities must be paid on the dates payable (after giving effect to any
Extension Period) to the extent that the Trust has funds available for the
payment of such Distributions in the Property Account of the Trust. The Trust's
funds available for distribution to
A-3-3
<PAGE> 90
the Holders of the Common Securities will be limited to payments received
from the Debenture Issuer. The payment of Distributions out of moneys held by
the Trust is guaranteed by the Sponsor pursuant to the Common Securities
Guarantee.
The Common Securities shall be redeemable as provided in the
Declaration.
A-3-4
<PAGE> 91
EXHIBIT B
FORM OF TRANSFEREE CERTIFICATE
TO BE EXECUTED BY IAIs
__________, 199__
Union Planters Corporation
Union Planters Capital Trust A
c/o Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Re: Purchase of 8.20% Capital Trust Pass-through Securities
(SM)(TruPS) (SM) (the "Capital Securities") of Union Planters
Capital Trust A (the "Trust")
Ladies and Gentlemen:
In connection with our purchase of the Capital Securities we
confirm that:
1. We understand that the 8.20% Capital Trust Pass-through
Securities(SM) (the "Capital Securities") (including the guarantee (the
"Guarantee") of Union Planters Corporation (the "Company") executed in
connection therewith) and the 8.20% Junior Subordinated Deferrable Interest
Debentures due 2026 (the "Subordinated Debt Securities") of the Company, the
Capital Securities, the Guarantee, and Subordinated Debt Securities together
being referred to herein as "Offered Securities" have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and may not be
offered or sold except as permitted in the following sentence. We agree on our
own behalf and on behalf of any investor account for which we are purchasing the
Offered Securities that, if, prior to the date which is three years after the
later of the date of original issue of the Offered Securities and the last date
on which the Company, the Trust or any affiliate of the Company or the Trust was
the owner of such Offered Securities (the "Resale Restriction Termination
Date"), we decide to offer, sell or otherwise transfer any such Offered
Securities, such offer, sale or transfer will be made only (a) to the Company or
the Trust, (b) pursuant to an effective registration statement under the
Securities Act, (c) so long as the Offered Securities are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d) to an
institutional "accredited investor" with the meaning of subparagraph (a) (1),
(2), (3) or (7) of Rule 501 under the Securities Act that is acquiring Offered
Securities 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 thereof in violation of the
Securities Act, or (e) pursuant to another available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirements of law that the disposition of our property
or compliance with any applicable state securities laws. The foregoing
restrictions on
B-1
<PAGE> 92
resale will not apply subsequent to the Resale Restriction Termination
Date. If any resale or other transfer of the Offered Securities is
proposed to be made pursuant to clause (d) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to The First National Bank
of Chicago as Transfer Agent, which shall provide as applicable, among other
things, that the transferee is 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 such Securities for investment purposes and
not for distribution in violation of the Securities Act. We acknowledge on our
behalf and on behalf of any investor account for which we are purchasing
Securities that the Trust and the Company reserve the right prior to any offer,
sale or other transfer pursuant to clauses (d) or (e) prior to the Resale
Restriction Termination Date of the Securities to require the delivery of any
opinion of counsel, certifications and/or other information satisfactory to the
Trust and the Company. We understand that the certificates for any Offered
Security that we receive will bear a legend substantially to the effect of the
foregoing.
2. We are an institutional "accredited investor" with the
meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501 under the
Securities Act purchasing for our own account or for the account of such an
institutional "accredited investor," and we are acquiring the Offered Securities
for the investment purposes and not with view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act and we have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Offered Securities,
and we and any account for which we are acting are each able to bear the
economic risks of our or its investment.
3. We are acquiring the Offered Securities purchased by us for
our own account (or for one or more accounts as to each of which we exercise
sole investment discretion and have authority to make, and do make, the
statements contained in this letter) and not with a view to any distribution of
the Offered Securities, subject, nevertheless, to the understanding that the
disposition of our property will at all times be and remain within our control.
4. We acknowledge that (a) none of the Company, the Trust, or
the Initial Purchasers (as defined in the Offering Memorandum dated December 2,
1996 relating to the Offered Securities, as supplemented (the "Final
Memorandum")) nor any person acting on behalf of the Company, the Trust or the
Initial Purchasers has made any representation to us with respect to the
Company, the Trust or the offer or sale of any Offered Securities and (b) any
information we desire concerning the Company, the Trust and the Offered
Securities or any other matter relevant to our decision to purchase the Offered
Securities (including a copy of the Final Memorandum) is or has been made
available to us.
5. In the event that we purchase any Capital Securities or any
Subordinated Debt Securities, we will acquire such Capital Securities having an
aggregate stated liquidation amount of not less than $100,000 or such
Subordinated Debt Securities having an aggregate principal amount not less than
$100,000, for our own account and for each separate account for which we are
acting.
B-2
<PAGE> 93
6. We acknowledge that we (A) are not ourselves, and are not
acquiring Capital Securities with "plan assets" of an employee benefit or other
plan subject to Title I of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code") (each, a "Plan"), or an entity whose underlying assets
include "plan assets" by reason of any Plan's investment in the entity (a "Plan
Asset Entity") or (B) (1) are ourselves, or are acquiring Capital Securities
with the assets of an "investment fund" (within the meaning of Part V(b) of PTCE
84-14) managed by a "qualified professional asset manager" (within the meaning
of Part V(a) of PTCE 84-14) which has made or properly authorized the decision
for such fund to purchase Capital Securities, under circumstances such that PTCE
84-14 is applicable to the purchase and holding of such Capital Securities, (2)
are ourselves, or are acquiring Capital Securities with the assets of, a Plan
managed by an "in-house asset manager" (within the meaning of Part IV(a) of PTCE
96-23) which has made or properly authorized the decision for such Plan to
purchase Capital Securities, under circumstances such that PTCE 96-23 is
applicable to the purchase and holding of such Capital Securities, (3) are an
insurance company pooled separate account purchasing Capital Securities pursuant
to Part I of PTCE 91-38, and in either case no Plan owns more than 10% of the
assets of such account or collective fund (when aggregated with other Plans of
the same employer (or its affiliates) or employee organization) or (4) are an
insurance company using the assets of its general account to purchase the
Capital Securities pursuant to Part I of PTCE 85-60, in which case the reserves
and liabilities for the general account contracts held by or on behalf of any
Plan, together with any other Plans maintained by the same employer (or its
affiliates) or employee organization, do not exceed 10% of the total reserves
and liabilities of the insurance company general account (exclusive of separate
account liabilities), plus surplus as set forth in the National Association of
Insurance Commissioners Annual Statement filed with the state of domicile of the
insurer.
7. We acknowledge that the Company, the Trust, the Initial
Purchasers and others will rely upon the truth and accuracy of the foregoing
acknowledges, representations, warranties and agreements and agrees that if any
of the acknowledgments, representations, warranties and agreements deemed to
have been made by our purchase of the Offered Securities are no longer accurate,
we shall promptly notify the Initial Purchasers. If we are acquiring any Offered
Securities as a fiduciary or agent for one or more investor accounts, we
represent that we have sole discretion with respect to each such investor
account and that we have full power to make the foregoing acknowledgments,
representations and agreement on behalf of each such investor account.
Very truly yours,
-----------------------
(Name of Purchaser)
By:
------------------------
Date:
-----------------------
B-3
<PAGE> 94
Upon their transfer, the Offered Securities would be
registered in the name of the new beneficial owner as follows:
Name:
-----------------------------------------------------------------------
Address:
--------------------------------------------------------------------
Taxpayer ID Number:
B-4
<PAGE> 95
EXHIBIT C
FORM OF TRANSFEREE CERTIFICATE
TO BE EXECUTED BY QIB
__________, 199__
Union Planters Corporation
Union Planters Capital Trust A
c/o Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Re: Purchase of 8.20% Capital Trust Pass-through Securities (SM)(TRUPS)
(SM) (the "Capital Securities") of Union Planters Capital Trust A (the
"Trust")
Reference is hereby made to the Amended and Restated
Declaration dated as of December 12, 1996 (the "Declaration") among Jackson W.
Moore, John W. Park and M. Kirk Walters, as Regular Trustees, First Chicago
Delaware Inc., as Delaware Trustee, The First National Bank of Chicago, as
Institutional Trustee, Union Planters Corporation as Sponsor and the holders
from time to time of undivided beneficial interest in the assets of the Trust.
Capitalized terms used but not defined herein shall have the meanings given them
in the Declaration.
This letter relates to $_______ aggregate liquidation amount
of Capital Securities which are held in the name of [name of transferor] (the
"Transferor") to effect the transfer of such Capital Securities in exchange for
an equivalent beneficial interest in the Rule 144A Global Capital Security.
In connection with such request, and in respect to such
Capital Securities, the transferor does hereby certify that such Capital
Securities are being transferred in accordance with (i) the transfer
restrictions set forth in the Capital Securities and (ii) Rule 144A under the
United States Securities Act of 1933, as amended ("Rule 144A"), to a transferee
that the Transferor reasonably believes is purchasing the Capital Securities for
its own account or an account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in a
transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
C-1
<PAGE> 96
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
------------------------------------
(Name of Transferor)
By:
--------------------------------
Name:
-----------------------
Title:
-----------------------
Date:
------------------------------
C-2
<PAGE> 97
EXHIBIT D
SPECIMEN OF INITIAL DEBENTURE
D-1
<PAGE> 98
EXHIBIT E
PURCHASE AGREEMENT
E-1
<PAGE> 99
EXHIBIT F
REGISTRATION AGREEMENT
F-1
<PAGE> 1
EXHIBIT 4.3
==============================================================================
UNION PLANTERS CORPORATION
as Issuer
INDENTURE
Dated as of December 12, 1996
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
SUBORDINATED DEBT SECURITIES
==============================================================================
<PAGE> 2
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
December 12, 1996 among Union Planters Corporation, as Issuer, and The First
National Bank of Chicago, as Trustee:
<TABLE>
<CAPTION>
ACT SECTION INDENTURE SECTION
<S> <C>
310(a)(1)................................................................... 6.09
(a)(2)..................................................................... 6.09
310(a)(3)................................................................... N.A.
(a)(4)..................................................................... N.A.
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)................................................................... Omitted
316(a) last sentence........................................................ 7.04
316(b)...................................................................... 5.04
317(a)...................................................................... 5.02
317(b)...................................................................... 3.04(a)
318(a)...................................................................... 13.08
</TABLE>
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
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
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.........................................................................................4
Exchange Act.............................................................................................4
Global Security..........................................................................................4
Indenture................................................................................................4
Institutional Trustee....................................................................................4
Interest.................................................................................................4
Interest Payment Date....................................................................................4
Mortgage.................................................................................................4
Officers' Certificate....................................................................................4
Opinion of Counsel.......................................................................................4
Original Issue Date......................................................................................4
Original Issue Discount Security.........................................................................5
Person...................................................................................................5
Predecessor Security.....................................................................................5
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
Principal Office of the Trustee..........................................................................6
Responsible Officer......................................................................................6
Securityholder, holder of Debt Securities................................................................6
Senior Indebtedness......................................................................................6
Subsidiary...............................................................................................6
Trust Indenture Act......................................................................................7
Trust Securities.........................................................................................7
Trustee..................................................................................................7
Union Planters Trust.....................................................................................7
Yield to Maturity........................................................................................7
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally....................................................................................7
SECTION 2.02. Form of Trustee's Certificate of Authentication....................................................8
SECTION 2.03. Amount Unlimited; Issuable in Series...............................................................8
SECTION 2.04. Authentication and Dating.........................................................................10
SECTION 2.05. Date and Denomination of Debt Securities..........................................................11
SECTION 2.06. Execution of Debt Securities......................................................................13
SECTION 2.07. Exchange and Registration of Transfer of Debt Securities..........................................13
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Debt Securities..............................................15
SECTION 2.09. Temporary Debt Securities.........................................................................16
SECTION 2.10. Cancellation of Debt Securities Paid, etc.........................................................17
SECTION 2.11. Global Securities.................................................................................17
SECTION 2.12. CUSIP Numbers.....................................................................................18
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest........................................................18
SECTION 3.02. Offices for Notices and Payments, etc.............................................................19
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office................................................19
SECTION 3.04. Provision as to Paying Agent......................................................................19
SECTION 3.05. Certificate to Trustee............................................................................20
SECTION 3.06. Compliance with Consolidation Provisions..........................................................21
SECTION 3.07. Limitation on Dividends...........................................................................21
SECTION 3.08. Covenants as to Union Planters Trusts.............................................................21
SECTION 3.09. Calculation of Original Issue Discount............................................................22
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists............................................................................22
SECTION 4.02. Preservation and Disclosure of Lists..............................................................22
SECTION 4.03. [Reserved]........................................................................................24
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C>
SECTION 4.04. Reports by the Trustee............................................................................24
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT
SECTION 5.01. Events of Default.................................................................................24
SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor..............................................26
SECTION 5.03. Application of Moneys Collected by Trustee........................................................28
SECTION 5.04. Proceedings by Securityholders....................................................................29
SECTION 5.05. Proceedings by Trustee............................................................................29
SECTION 5.06. Remedies Cumulative and Continuing................................................................30
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders....................30
SECTION 5.08. Notice of Defaults................................................................................31
SECTION 5.09. Undertaking to Pay Costs..........................................................................31
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee............................................................32
SECTION 6.02. Reliance on Documents, Opinions, etc..............................................................33
SECTION 6.03. No Responsibility for Recitals, etc...............................................................34
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Debt
Securities........................................................................................34
SECTION 6.05. Moneys to be Held in Trust........................................................................34
SECTION 6.06. Compensation and Expenses of Trustee..............................................................34
SECTION 6.07. Officers' Certificate as Evidence.................................................................35
SECTION 6.08. Conflicting Interest of Trustee...................................................................35
SECTION 6.09. Eligibility of Trustee............................................................................36
SECTION 6.10. Resignation or Removal of Trustee.................................................................36
SECTION 6.11. Acceptance by Successor Trustee...................................................................37
SECTION 6.12. Succession by Merger, etc.........................................................................38
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.....................................................39
SECTION 6.14. Authenticating Agents.............................................................................39
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.........................................................................40
SECTION 7.02. Proof of Execution by Securityholders.............................................................41
SECTION 7.03. Who Are Deemed Absolute Owners....................................................................41
SECTION 7.04. Debt Securities Owned by Company Deemed Not Outstanding...........................................41
SECTION 7.05. Revocation of Consents; Future Holders Bound......................................................42
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ARTICLE VIII
SECURITYHOLDERS' MEETINGS
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SECTION 8.01. Purposes of Meetings..............................................................................42
SECTION 8.02. Call of Meetings by Trustee.......................................................................43
SECTION 8.03. Call of Meetings by Company or Securityholders....................................................43
SECTION 8.04. Qualifications for Voting.........................................................................43
SECTION 8.05. Regulations.......................................................................................43
SECTION 8.06. Voting............................................................................................44
SECTION 8.07. Quorum; Actions...................................................................................44
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Securityholders........................................45
SECTION 9.02. Supplemental Indentures with Consent of Securityholders...........................................47
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures............................48
SECTION 9.04. Notation on Debt Securities.......................................................................48
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee..........................49
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms...................................................49
SECTION 10.02. Successor Corporation to be Substituted..........................................................49
SECTION 10.03. Opinion of Counsel to be Given Trustee...........................................................50
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture...........................................................................50
SECTION 11.02. Deposited Moneys to be Held in Trust by Trustee..................................................51
SECTION 11.03. Paying Agent to Repay Moneys Held................................................................51
SECTION 11.04. Return of Unclaimed Moneys.......................................................................51
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate Obligations.......................................51
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.......................................................................................52
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SECTION 13.02. Official Acts by Successor Corporation...........................................................52
SECTION 13.03. Surrender of Company Powers......................................................................52
SECTION 13.04. Addresses for Notices, etc.......................................................................52
SECTION 13.05. Governing Law....................................................................................53
SECTION 13.06. Evidence of Compliance with Conditions Precedent.................................................53
SECTION 13.07. Non-Business Days................................................................................53
SECTION 13.08. Trust Indenture Act to Control...................................................................53
SECTION 13.09. Table of Contents, Headings, etc.................................................................53
SECTION 13.10. Execution in Counterparts........................................................................54
SECTION 13.11. Separability.....................................................................................54
SECTION 13.12. Assignment.......................................................................................54
SECTION 13.13. Acknowledgment of Rights.........................................................................54
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.........................................................................55
SECTION 14.02. Notice of Redemption; Selection of Debt Securities...............................................55
SECTION 14.03. Payment of Debt Securities Called for Redemption.................................................56
SECTION 14.04. Mandatory and Optional Sinking Fund..............................................................56
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate.........................................................................58
SECTION 15.02. Default on Senior Indebtedness...................................................................59
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.............................................................59
SECTION 15.04. Subrogation......................................................................................60
SECTION 15.05. Trustee to Effectuate Subordination..............................................................61
SECTION 15.06. Notice by the Company............................................................................61
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness............................................62
SECTION 15.08. Subordination May Not Be Impaired................................................................62
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THIS INDENTURE, dated as of December 12, 1996, between Union
Planters Corporation, a Tennessee corporation (hereinafter sometimes called the
"Company"), and The First National Bank of Chicago, a national banking
association, 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:
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.
<PAGE> 9
"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.
"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 beneficial
interests in the assets of a Union Planters Trust which rank pari passu with
Common Securities issued by such Union Planters Trust; provided, however, that
upon the occurrence of an Event of Default (as defined in the Declaration with
respect to such Union Planters 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
Union Planters Trust, any guarantee that the Company may enter into with The
First National Bank of Chicago or other Persons that operates directly or
indirectly for the benefit of holders of Capital Securities of such Union
Planters 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 Union Planters Trust which rank pari passu with Capital
Securities issued by such Union Planters Trust; provided, however, that upon
the occurrence of an Event of Default (as defined in the Declaration with
respect to such Union Planters Trust), the rights of holders of such Common
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<PAGE> 10
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
Union Planters 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 Union Planters Trust.
"Company" shall mean Union Planters Corporation, 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 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 Union Planters Trust, shall
mean the Amended and Restated Declaration of Trust of such Union Planters
Trust.
"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 the 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.
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<PAGE> 11
"Institutional Trustee" has the meaning set forth in the
Declaration of the applicable Union Planters 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.
"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
(a) Debt Securities theretofore canceled by the Trustee or
the Authenticating Agent or delivered to the Trustee for cancellation;
(b) 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
this Company) or shall have been set aside and
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<PAGE> 12
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
(c) 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 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, 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.
"Responsible Officer", when used with respect to the Trustee,
shall mean the chairman and vice chairman of the board of directors, the
chairman or vice chairman of the executive committee of the board of directors,
the president, any vice president, any assistant vice president, the cashier,
any assistant cashier, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any senior trust officer, any trust officer, the
controller, any assistant controller or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of his 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.
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<PAGE> 13
"Senior Indebtedness" means, with respect to the Company,
(i) the principal, premium, if any, 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 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 on any letter of credit, 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 other debt securities issued pursuant to this
Indenture and guarantees in respect of those debt securities.
"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.
"Trust Securities" shall mean Common Securities and Capital
Securities of a Union Planters 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.
6
<PAGE> 14
"Union Planters Trust" shall mean a Delaware business trust, or any other
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.
"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 redetermination 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 First National Bank of Chicago, 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.
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<PAGE> 15
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 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:
(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;
8
<PAGE> 16
(10) if other than the principal amount thereof, the portion of the
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; and
(16) 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.
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
9
<PAGE> 17
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 relying upon:
(1) a copy of any Board Resolution or 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 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 resolution of the Board of Directors 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;
(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 the Indenture; and
(e) such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver
any Debt Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or vice presidents
shall determine that such action would expose the Trustee to personal liability
to existing holders.
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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
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
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 (as hereinafter defined), not less
than ten days prior to such special
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record date. Notice of the proposed payment of such Defaulted Interest
and the special record date therefor having been 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 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.
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 Chief Financial Officer, 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
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authorized signatory, 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.
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
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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.
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 in
accordance with applicable law:
THE DEBT SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS 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 UNION
PLANTERS CORPORATION (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 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
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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. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
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
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
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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 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 deliver all canceled Debt Securities to the Company.
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 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 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 Securities to the Depositary for delivery to
the Persons in whose names such Debt Securities are so registered.
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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 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.
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.
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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 notice of any failure by the 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 such failure,
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 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.
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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 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.
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 company 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 Union Planters
Trust or a trustee of such trust in connection with the issuance of Trust
Securities by such Union Planters 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 the Company's capital
stock or
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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 that certain Share Purchase Rights Plan adopted by the Board
of Directors on January 19, 1989 relating to the designation and authorization
of Series A Preferred Stock of the Company, or the redemption or repurchase of
any such rights pursuant thereto) or make any guarantee payments 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 (including guarantees) issued by the Company that rank pari passu
with or junior to the Debt Securities of such series.
SECTION 3.08. Covenants as to Union Planters Trusts.
In the event Debt Securities of a series are initially issued to a Union
Planters Trust or a trustee of such trust in connection with the issuance of
Trust Securities by such Union Planters Trust, for so long as such Trust
Securities remain outstanding, the Company will (i) maintain 100% ownership of
the Common Securities of such Union Planters Trust; provided, however, that any
permitted successor of the Company under this Indenture may succeed to the
Company's ownership of such Common Securities, (ii) use its reasonable efforts
to cause such Union Planters 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 Trust, the
redemption of all of the Trust Securities of such Union Planters Trust or
mergers, consolidations or amalgamations, each as permitted by the Declaration
of such Union Planters Trust, and (b) to otherwise continue to be classified as
a grantor trust for United States federal income tax purposes and (iii) use its
reasonable efforts to cause each holder of Trust Securities issued by such
Trust to be treated as owning an undivided beneficial interest in the Debt
Securities of such series issued to such 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.
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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; 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
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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 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).
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(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.
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 or otherwise;
provided, however, that a valid extension of the maturity of such Debt
Securities in accordance with the terms of such Debt Securities shall not
constitute a default in the payment of principal or premium, if any; or
(c) the Company defaults with respect to indebtedness for money borrowed
resulting in acceleration of such indebtedness having an aggregate principal
amount in excess of $25 million and such acceleration is not rescinded or
annulled within 30 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the outstanding Debt
Securities of that series, a written notice specifying such acceleration and
stating that such Notice is a "Notice of Default" hereunder; or
(d) the Company defaults in the performance of, or breaches, any of its
covenants or warranties in this Indenture or in the terms of that series of
Debt Securities established pursuant to this Indenture (other than a covenant
or warranty 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
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written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(e) 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
(f) 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 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
(g) as to Debt Securities of any series issued to a Union Planters Trust,
such Union Planters Trust shall have voluntarily or involuntarily 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
Union Planters Trust, (ii) the redemption of all of the outstanding Trust
Securities of such Union Planters Trust or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the Declaration of such
Union Planters 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
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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 expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and if any and all Events of Default under
the 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 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 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 expenses or liabilities incurred by
the Trustee hereunder other than through its negligence or bad faith. In case
the Company shall fail forthwith to pay such amounts upon such demand, the
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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 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 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 expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad faith) 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 expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or bad
faith.
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
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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 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 expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or bad
faith;
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 by
virtue of or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Debt Securities of such series specifying such Event of
Default, as hereinbefore provided, and unless also the holders of not less than
25% in aggregate principal amount of the Debt Securities
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of that series then outstanding shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or 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, it being understood and intended, and being expressly
covenanted by the taker and holder of every Debt Security with every other
taker and holder and the Trustee, that no one or more holders of Debt
Securities of any series shall have any right in any manner whatever by virtue
of or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other holder of Debt Securities of such series, or
to obtain or seek to obtain priority over or preference to any other such
holder, or to 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 (and
premium, if any) and interest, if any, on such Debt Security, on or after the
same shall have become due and payable, 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 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 the Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee of directors
or trustees and/or Responsible Officers 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) a default of
the covenants contained in Section 3.08; provided, however, that if the Debt
Securities of such series are held by a Union Planters 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 Union Planters 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 Union
Planters 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.
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
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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 the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
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.
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.
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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 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 reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity 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 rely and shall be 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;
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(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 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; and
(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.
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
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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.
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 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.
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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 termination of this
Indenture.
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.
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 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.
(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
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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 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.
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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.
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.
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 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
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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 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 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
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(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.
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 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
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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 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.
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 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 therefor.
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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.
SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a resolution of the Board of
Directors, 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.
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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 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
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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.
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.
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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.
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 and the Trustee 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; 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 as required by Section 2.07, 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 (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
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series then outstanding (it being understood, for purposes of this proviso,
that transfer restrictions on Debt Securities of a series substantially similar
to those 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.
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 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
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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 Union
Planters 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 Union Planters 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.
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
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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 in form approved by the
Trustee 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 Trustee and 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.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
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 may 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
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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.
SECTION 10.02. Successor Corporation to be Substituted.
In case of any such consolidation, merger, sale, conveyance, transfer or
other disposition and upon the assumption by the successor corporation, 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
corporation 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 corporation shall be relieved of any further liability or
obligation hereunder or upon the Debt Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of Union Planters Corporation, 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 corporation 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 corporation 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 Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive 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 either
case 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 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.
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,
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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.
SECTION 13.02. Official Acts by Successor Corporation.
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
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and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole 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 as the case may be, and
thereupon such power so surrendered shall terminate both as to the Company, and
as to any successor corporation.
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 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, 7130 Goodlett Farms Parkway, Memphis, Tennessee 38018,
Attention: Secretary. 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, One First National
Plaza, Suite 0126, Chicago, Illinois 60670, Attention: Corporate Trust Services
Division.
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 shall include (1) a statement that the person making such
certificate or opinion 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.
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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 City 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.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of its
respective 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.
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SECTION 13.13. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Debt Securities held by
any Union Planters Trust or a trustee of such trust, if the Institutional
Trustee of such trust fails to enforce its rights under this Indenture as the
holder of the series of Debt Securities held as the assets of such Union
Planters Trust any holder of Capital Securities may 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 or entity. 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 Union Planters Trust that purchased the
applicable series of Debt Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of (or premium, if any)
or interest on the applicable series of Debt Securities having a 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.
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.
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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.
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.
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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 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
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(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.
On or before 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.
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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.
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 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
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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 the 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.
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,
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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.
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 the 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. 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 15.08. 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
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 First National Bank of Chicago 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.
UNION PLANTERS CORPORATION
By /s/ Benjamin W. Rawlins, Jr.
-----------------------------
Name: Benjamin W. Rawlins, Jr.
Title: Chairman of the Board and
Chief Executive Officer
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By /s/ Melissa G. Weisman
----------------------------
Name: Melissa G. Weisman
Title: Vice President
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EXHIBIT 4.4
FIRST SUPPLEMENTAL INDENTURE
between
UNION PLANTERS CORPORATION, as Issuer,
and
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
Dated as of December 12, 1996
-----------------------------
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
<TABLE>
<S> <C>
DEFINITIONS.......................................................................................................2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES....................................................................3
ARTICLE III
REDEMPTION OF THE DEBENTURES......................................................................................8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD.............................................................................10
ARTICLE V
EXPENSES AND GUARANTEE...........................................................................................11
ARTICLE VI
FORM OF DEBENTURE................................................................................................12
ARTICLE VII
MISCELLANEOUS....................................................................................................21
</TABLE>
i
<PAGE> 3
FIRST SUPPLEMENTAL INDENTURE, dated as of December 12, 1996 (the "First
Supplemental Indenture"), between Union Planters Corporation, a Tennessee
corporation (the "Company") and The First National Bank of Chicago, as trustee
(the "Trustee"), under the Indenture dated as of December 12, 1996 between the
Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee
to provide for the issuance of the Company's unsecured junior subordinated debt
securities to be issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a series of its Debt Securities to be known as
8.20% Junior Subordinated Deferrable Interest Debentures due 2026 (the "Initial
Debentures"), and to provide for, if and when issued in exchange for the
Initial Debentures pursuant to the Indenture and the Registration Agreement, a
series of its Debt Securities to be known as 8.20% Junior Subordinated
Deferrable Interest Debentures due 2026 (the "Exchange Debentures" and together
with the Initial Debentures, the "Debentures"), the form and substance of each
such series of Debentures and the terms, provisions and conditions thereof to
be set forth as provided in the Indenture and this First Supplemental
Indenture;
WHEREAS, Union Planters Capital Trust A, a Delaware statutory business
trust (the "Trust"), has offered for sale pursuant to an exemption from the
registration requirements of the Securities Act of 1933, $200,000,000 aggregate
liquidation amount of 8.20% Capital Trust Pass-through Securities (the "Initial
Capital Securities"), representing undivided beneficial interests in the assets
of the Trust and proposes to invest the proceeds from such offering, together
with the proceeds of the issuance and sale by the Trust to the Company of its
common securities, in $206,186,000 aggregate principal amount of the
Debentures;
WHEREAS, the Trust may offer and issue 8.20% Capital Trust Pass-through
Securities (the "Exchange Capital Securities") in exchange for the Initial
Capital Securities; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture; all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed; and the execution and delivery of this First Supplemental Indenture
has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of the
Initial Debentures by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of each series of
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
<PAGE> 4
ARTICLE I
DEFINITIONS
SECTION 1.1
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
First Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Capital Security Certificate; (iii)
Clearing Agency; (iv) Delaware Trustee; (v) Depositary; (vi) Distribution;
(vii) Institutional Trustee; (viii) Purchase Agreement; (ix) Redemption Tax
Opinion; (x) Regular Trustees; (xi) Securities; and (xii) Tax Event;
(g) the following terms have the meanings given to them in this Section
1.1(g):
"Additional Interest" shall have the meaning set forth in Section 2.5(c).
"Call Price" shall have the meaning set forth in Section 3.2.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Declaration" means the Amended and Restated Declaration of Trust of the
Trust, dated as of December 12, 1996.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means that, subject to the receipt by the Company of
prior approval from the Board of Governors of the Federal Reserve System (the
"Federal Reserve") if then required under applicable capital guidelines or
policies of the Federal Reserve, the Trust is to be dissolved in accordance
with the Declaration, and the Debentures held by the Institutional Trustee are
to be distributed to the holders of the Trust Securities issued by the Trust
pro rata in accordance with the Declaration.
"Extension Period" shall have the meaning set forth in Section 4.1.
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<PAGE> 5
"Global Debenture" shall have the meaning set forth in Section 2.4(a)(i).
"interest" shall include all interest payable on a series of Debentures
including any Additional Interest, Compounded Interest and Special Interest, if
applicable.
"Maturity Date" means December 15, 2026.
"Non Book-Entry Capital Securities" shall have the meaning set forth in
Section 2.4(a)(ii).
"Record Date" shall have the meaning set forth in the Debentures.
"Registration Agreement" means the Registration Agreement, dated December
5, 1996, relating to the Debentures and the other securities described therein
among the Company, the Trust and the initial purchasers named therein.
"Registered Exchange Offer" has the meaning set forth in the Registration
Agreement.
"Special Interest" has the meaning set forth in Section 2.5(e)(iv).
"Tax Contingency" has the meaning set forth in Section 2.5(e)(ii).
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1
The Initial Debentures and the Exchange Debentures are hereby authorized
as two series of Debt Securities. The aggregate principal amount of Debentures
outstanding at any time shall not exceed $206,186,000. Upon receipt of a
written order of the Company for the authentication and delivery of a series of
Debentures and satisfaction of the requirements of Section 2.04 of the
Indenture, the Trustee shall authenticate (a) Initial Debentures for original
issuance in an aggregate principal amount not to exceed $206,186,000 (except as
set forth in Section 2.03(2) of the Indenture) or (b) Exchange Debentures for
issuance pursuant to a Registered Exchange Offer for Initial Debentures in a
principal amount equal to the principal amount of Initial Debentures exchanged
in such Registered Exchange Offer.
The Initial Debentures shall be issued pursuant to an exemption from
registration under the Securities Act and the Restricted Securities Legend
shall appear thereon, unless otherwise determined by the Company in accordance
with applicable law. The Initial Debentures may not be transferred except in
compliance with the Restricted Securities Legend set forth in Section 2.07 of
the Indenture, unless otherwise determined by the Company in accordance with
applicable law.
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<PAGE> 6
SECTION 2.2
At the Maturity Date, the Debentures shall mature and the principal
thereof shall be due and payable together with all accrued and unpaid interest
thereon including Compounded Interest, Additional Interest and Special Interest
thereon, if any.
SECTION 2.3
Except as provided in Section 2.4, Debentures of a series shall be issued
in fully registered certificated form without interest coupons. Principal and
interest on Debentures of a series issued in certificated form will be payable,
the transfer of such Debentures will be registrable and such Debentures will be
exchangeable for Debentures of such series bearing identical terms and
provisions at the office or agency of the Company in the Borough of Manhattan,
The City of New York, which office or agency shall initially be the corporate
trust office of the Trustee; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the holder of any
Debenture at such address as shall appear in the Debt Security Register for
such series of Debentures or by wire transfer to an account appropriately
designated by such holder. Notwithstanding the foregoing, so long as the holder
of any Debentures of a series is the Institutional Trustee, the payment of the
principal of (and premium, if any) and interest (including Compounded Interest,
Additional Interest and Special Interest, if any) on the Debentures held by the
Institutional Trustee will be made at such place and to such account as may be
designated by the Institutional Trustee.
SECTION 2.4
(a) In connection with a Dissolution Event,
(i) except as provided in clause (ii) of this sentence, Debentures
of a series in certificated form may be presented to the Trustee by the
Institutional Trustee in exchange for a Global Security for such series
in an aggregate principal amount equal to the aggregate principal amount
of all outstanding Debentures of such series (a "Global Debenture"), to
be registered in the name of The Depository Trust Company, New York, New
York, or its nominee (hereby designated to be the Depositary for
Debentures of such series), and delivered by the Trustee to the
Depositary or its custodian for crediting to the accounts of the
Depositary's participants pursuant to the instructions of the Regular
Trustees of the Trust, which instructions shall be provided in accordance
with the terms of the Declaration; the Company upon any such presentation
shall execute a Global Debenture for such series in such aggregate
principal amount and deliver the same to the Trustee for authentication
and delivery in accordance with the Indenture and this First Supplemental
Indenture; payments on the Debentures of a series issued as a Global
Debenture will be made to the Depositary;
(ii) if any Capital Securities of a series are not held by the
Clearing Agency or its nominee ("Non Book-Entry Capital Securities"), the
Debentures in certificated form of the series held by the Trust
corresponding to such Capital Securities of such series may be presented
to the Trustee by the Institutional Trustee and any Capital
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<PAGE> 7
Security Certificate which represents such Non Book-Entry Capital
Securities will be deemed to represent beneficial interests in Debentures
so presented to the Trustee by the Institutional Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of
such Non Book-Entry Capital Securities until such Capital Security
Certificates are presented to the Debt Security registrar for transfer or
reissuance at which time such Capital Security Certificates will be
canceled and a Debenture of the series previously held by the Trust
registered in the name of the holder of the Capital Security Certificate
or the transferee of the holder of such Capital Security Certificate, as
the case may be, with an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Security Certificate
canceled, will be executed by the Company and delivered to the Trustee
for authentication and delivery in accordance with the Indenture and this
First Supplemental Indenture; upon issue of such Debentures of such
series, Debentures of such series with an equivalent aggregate principal
amount that were presented by such Institutional Trustee to the Trustee
will be deemed to have been canceled; and
(iii) prior to the distribution of Debentures of a series held by
the Institutional Trustee to the holders of Securities of the Trust, the
Company and the Trustee shall enter into a supplemental indenture
pursuant to Article IX of the Indenture to provide for transfer
procedures and restrictions with respect to such Debentures of such
series 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 distribution of
Debentures of such series in connection with a Dissolution Event for
purposes of assuring that no registration of Debentures of such series is
required under the Securities Act of 1933, as amended.
(b) A Global Debenture may be transferred, in whole but not in part, only
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a nominee of
such successor Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
shall no longer be registered or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, and a
successor Depositary 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, the Company will execute, and, subject to Article II of the Indenture,
the Trustee, upon written notice from the Company, will authenticate and make
available for delivery, Debentures of each series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture of such series in
exchange for such Global Debenture. In addition, the Company may at any time
determine that the Debentures of a series shall no longer be represented by a
Global Debenture. In such event the Company will execute, and subject to
Section 2.07 of the Indenture, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate and
deliver Debentures 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 Debenture of such series in
exchange for such Global Debenture. A Global Debenture shall also
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<PAGE> 8
be exchangeable for Debentures in definitive form upon the occurrence of an
Event of Default. Upon the exchange of a Global Debenture for Debentures in
definitive registered form without coupons, in authorized denominations, such
Global Debenture shall be canceled by the Trustee. Such Debentures in
definitive registered form issued in exchange for such Global Debenture 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
Debentures to the Depositary for delivery to the Persons in whose names such
Debentures are so registered.
SECTION 2.5
(a) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than
a full semiannual period for which interest is computed, will be computed on
the basis of the actual number of days elapsed in such a period (assuming each
full month elapsed in such period consists of 30 days). In the event that any
date on which interest is payable on the Debentures of a series is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
(b) The indebtedness evidenced by all Debentures of a series is
subordinate and junior in right of payment to the prior payment in full of all
present and future Senior Indebtedness and pari passu in right of payment with
all Debentures of each other series.
(c) If, at any time while the holder of any Debentures of a series is the
Institutional Trustee, the Trust is required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in
any such case, the Company shall pay as additional interest ("Additional
Interest") on the Debentures held by the Institutional Trustee, such additional
amounts as shall be required so that the net amounts received and retained by
the Trust after paying such taxes, duties, assessments or other governmental
charges will be equal to the amounts the Trust and the Institutional Trustee
would have received had no such taxes, duties, assessments or other
governmental charges been imposed.
(d) If an Initial Debenture is exchanged in a Registered Exchange Offer
prior to the Record Date for the first Interest Payment Date following such
exchange, accrued and unpaid interest, if any, on such Initial Debenture, up to
but not including the date of issuance of the Exchange Debenture or Exchange
Debentures issued in exchange for such Initial Debenture, shall be paid on the
first Interest Payment Date for such Exchange Debenture or Exchange Debentures
to the Securityholder or Securityholders of such Exchange Debenture or Exchange
Debentures on the first Record Date with respect to such Exchange Debenture or
Exchange Debentures. If an Initial Debenture is exchanged in a Registered
Exchange Offer subsequent to the Record Date for the first Interest Payment
Date following such exchange but on or prior to
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<PAGE> 9
such Interest Payment Date, then any such accrued and unpaid interest with
respect to such Initial Debenture and any accrued and unpaid interest on the
Exchange Debenture or Exchange Debentures issued in exchange for such Initial
Debenture, through the day before such Interest Payment Date, shall be paid on
such Interest Payment Date to the Securityholder of such Initial Debenture on
such Record Date.
(e) The following terms relate to Special Interest:
(i) Except as described in paragraph (ii), in the event that either
(A) the Exchange Offer Registration Statement (as such term is defined in
the Registration Agreement) is not filed with the Securities and Exchange
Commission (the "Commission") on or prior to the 150th day following the
Closing Date (as such term is defined in the Registration Agreement), (B)
the Exchange Offer Registration Statement is not declared effective by
the Commission on or prior to the 180th day following the Closing Date or
(C) the Exchange Offer (as such term is defined in the Registration
Agreement) is not consummated or a Shelf Registration Statement (as such
term is defined in the Registration Agreement) is not declared effective
by the Commission on or prior to the 210th day following the Closing
Date, interest shall accrue on Initial Debentures (in addition to the
stated interest on Initial Debentures) from and including the next day
following each of (1) such 150-day period in the case of clause (A)
above, (2) such 180-day period in the case of clause (B) above and (3)
such 210-day period in the case of clause (C) above. In each case, such
additional interest shall accrue at a rate per annum equal to 0.25% of
the principal amount of the Initial Debentures (determined daily). The
aggregate amount of additional interest payable pursuant to the above
provisions will in no event exceed 0.50 % per annum of the principal
amount of the Initial Debentures (determined daily). Upon (X) the filing
of the Exchange Offer Registration Statement or the occurrrence of a Tax
Contingency (as defined below), if applicable, after the 150-day period
described in clause (A) above, (Y) the effectiveness of the Exchange
Offer Registration Statement (or the filing of a Shelf Registration
Statement, in the event of a Tax Contingency, if applicable) after the
180-day period described in clause (B) above or (Z) the consummation of
the Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, after the 210-day period described in
clause (C) above (or the effectiveness of a Shelf Registration Statement
after the 240-day period spcified below, in the event of a Tax
Contingency, if applicable), the additional interest payable on the
Initial Debentures, with respect to such clause (A), (B) or (C), as the
case may be, from the date of such filing, effectiveness or consummation,
as the case may be, shall cease to accrue.
(ii) In the event that on or after the 150th day following the
Closing Date the Company shall determine in good faith that there is a
reasonable likelihood that, or a material uncertainty as to whether,
consummation of the Exchange Offer would result in an adverse tax
consequence to the Company (a "Tax Contingency"), the Company and the
Trust may, at the Company's option and cost, in lieu of the commencement
of the Exchange Offer, file and cause to be declared effective a Shelf
Registration Statement covering resales of the Initial Debentures and use
their best efforts to keep effective the Shelf Registration Statement
until three years after its effective date. To the extent that
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<PAGE> 10
such a Tax Contingency exists on the 150th day following the Closing
Date, then clauses (A) and (1) of paragraph (i) shall not apply. To the
extent that such a Tax Contingency exists and the Company has filed a
Shelf Registration Statement covering resales of the Initial Debentures
by the 180th day following the Closing Date, then clauses (B) and (2) of
paragraph (i) shall not apply, and to the extent a Tax Contingency exists
on the 210th day following the Closing Date, the period specified in
clauses (C) and (3) of paragraph (i) will be 240 days.
(iii) In the event that a Shelf Registration Statement is declared
effective pursuant to the terms of the Registration Agreement, if the
Company or the Trust fails to keep such Shelf Registration Statement
continuously effective for the period required by the Registration
Agreement, then from the next day following such time as the Shelf
Registration Statement is no longer effective until the earlier of (A)
the date that the Shelf Registration Statement is again deemed effective,
(B) the date that is the third anniversary of the effective date (or, in
the case of a Shelf Registration Statement filed at the request of an
Initial Purchaser (as such term is defined in the Registration
Agreement), the first anniversary of the effective date) or (C) the date
as of which all of the Initial Debentures are sold pursuant to the Shelf
Registration Statement, interest shall accrue on the Initial Debentures
(in addition to the stated interest on the Initial Debentures) at a rate
per annum equal to 0.25% of the principal amount of the Initial
Debentures (determined daily).
(iv) Any additional interest that accrues with respect to the
Initial Debentures as provided in this paragraph is referred to as
"Special Interest." For all purposes of the Indenture, this Supplemental
Indenture and the Initial Debentures, Special Interest shall be treated
as interest and shall be payable on the same Interest Payment Dates and
to the Securityholders of record on the same record dates as would be the
case for stated interest.
SECTION 2.6
If at any time the holder of all Debentures of a series ceases to be the
Institutional Trustee and, at such time, the Capital Securities issued by the
Trust are rated by at least one nationally recognized statistical rating
agency, then the Company shall use its best efforts to obtain from at least one
nationally recognized statistical rating agency a rating for the Debentures of
such series.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1
If a Tax Event with respect to the Trust has occurred and is continuing
and the Company has received a Redemption Tax Opinion then, subject to the
receipt by the Company of prior approval by the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal
Reserve, the Company shall have the right upon not less than 30 days nor
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<PAGE> 11
more than 60 days' notice to redeem the Debentures held by the Institutional
Trustee, in whole or in part, for cash within 90 days following the occurrence
of the Tax Event (the "90 Day Period") at a redemption price equal to 100% of
the principal amount to be redeemed plus any accrued and unpaid interest
thereon to the date of such redemption (the "Tax Event Redemption Price"),
provided that if (i) there is available to the Company or the Trust the
opportunity to eliminate, within the 90 Day Period, the adverse effects of such
Tax Event by taking some ministerial action ("Ministerial Action"), such as
filing a form or making an election, or pursuing some other similar reasonable
measure which has no adverse effect on the Company, the Trust or the holders of
the Securities and (ii) such notice has not been given, the Company or the
Trust shall pursue such Ministerial Action in lieu of redemption, and,
provided, further, that the Company shall have no right to redeem such
Debentures while the Trust is pursuing any Ministerial Action pursuant to its
obligations under the Declaration. The Tax Event Redemption Price shall be paid
prior to 11:00 a.m., New York City time, on the date of such redemption or such
earlier time as the Company determines, provided that the Company shall deposit
with the Trustee an amount sufficient to pay the Tax Event Redemption Price by
10:00 a.m., New York City time, on the date the Tax Event Redemption Price is
to be paid.
SECTION 3.2
Subject to the provisions of Article XIV of the Indenture and the receipt
by the Company of prior approval by the Federal Reserve if then required under
applicable guidelines or policies of the Federal Reserve, and in addition to
the rights set forth in Section 3.1 of this First Supplemental Indenture,
except as otherwise may be specified in this First Supplemental Indenture, the
Company shall have the right to redeem the Debentures, in whole or in part,
from time to time, on or after December 15, 2006, at call prices (expressed as
a percentage of principal amount per Debenture being redeemed) specified below
(the "Call Prices") plus any accrued and unpaid interest thereon to the date of
such redemption:
If redeemed during the 12-month period:
<TABLE>
<CAPTION>
Beginning December 15, Call Price
- ---------------------- ----------
<S> <C>
2006 103.8340%
2007 103.4506
2008 103.0672
2009 102.6838
2010 102.3004
2011 101.9170
2012 101.5336
2013 101.1502
2014 100.7668
2015 100.3834
2016 100.0000
2017 100.0000
2018 100.0000
2019 100.0000
</TABLE>
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<PAGE> 12
<TABLE>
<CAPTION>
Beginning December 15, Call Price
------------------------ ------------
<S> <C>
2020 100.0000
2021 100.0000
2022 100.0000
2023 100.0000
2024 100.0000
2025 100.0000
</TABLE>
Any redemption pursuant to the preceding paragraph will be made upon not
less than 30 days nor more than 60 days' notice to the holder of the
Debentures, at the Call Price plus any accrued and unpaid interest to the date
of such redemption. If Debentures are only partially redeemed pursuant to this
Section 3.2, Debentures shall be redeemed pro rata or by lot or by any other
method utilized by the Trustee. The Call Price (plus accrued and unpaid
interest, if any) shall be paid prior to 11:00 a.m., New York City time, on the
date of such redemption or at such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an amount sufficient
to pay the Call Price (plus accrued and unpaid interest, if any) by 10:00 a.m.,
New York City time, on the date such Call Price is to be paid.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1
The Company shall have the right, at any time and from time to time during
the term of the Debentures, to defer payments of interest by extending the
interest payment period of the Debentures of a series for a period not
exceeding 10 consecutive semiannual periods (the "Extension Period"), during
which Extension Period no interest shall be due and payable; provided that (i)
no Extension Period may extend beyond the Maturity Date and (ii) no Extension
Period may commence or be extended so long as the Company is in default in the
payment of any interest upon any Debentures of such series or has not paid all
Deferred Interest from a prior completed Extension Period. To the extent
permitted by applicable law, interest on the Debentures of a series, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at a
rate equal to the original interest rate borne by the principal of the
Debentures (without regard to any increase or increases from time to time in
respect of Additional Interest or Special Interest, if any), compounded
semiannually for each semiannual period of the Extension Period ("Compounded
Interest"). At the termination of an Extension Period for the Debentures of a
series or, if not an Interest Payment Date, on the Interest Payment Date
immediately following termination of such Extension Period for the Debentures
of such series, the Company shall pay all interest accrued and unpaid on the
Debentures, including any Additional Interest and Compounded Interest
(together, "Deferred Interest"), which Deferred Interest shall be payable to
the holders of the Debentures of such series in whose names the Debentures are
registered in the Debt Security Register on the record date for the payment of
interest on such Interest Payment
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Date. Before the termination of any Extension Period, the Company may further
extend such period, provided that such period together with all such previous
and further consecutive extensions thereof shall not exceed 10 consecutive
semiannual periods, or extend beyond the Maturity Date. Upon the termination of
any Extension Period and upon the payment of all Deferred Interest then due,
the Company may commence a new Extension Period, subject to the foregoing
requirements.
SECTION 4.2
(a) If the Institutional Trustee is the only registered holder of the
Debentures of a series at the time the Company initiates an Extension Period,
the Company shall give written notice to the Regular Trustees, the
Institutional Trustee and the Trustee of its initiation of such Extension
Period one Business Day before the earlier of (i) the date on which
distributions on the Capital Securities of the corresponding series are
payable, or (ii) the date the Regular Trustees are required to give notice to
holders of the Capital Securities of the corresponding series (or any national
securities exchange or other organization on which such Capital Securities are
listed, if any) of the record date or the distribution payment date, in each
case with respect to distributions on the Securities the payment of which is
being deferred.
(b) If the Institutional Trustee is not the only registered holder of the
Debentures of a series at the time the Company initiates an Extension Period,
the Company shall give the holders of the Debentures of such series and the
Trustee written notice of its initiation of such Extension Period at least ten
Business Days before the earlier of (i) the next succeeding Interest Payment
Date, or (ii) the date the Company is required to give notice to holders of the
Debentures of such series (or any national securities exchange or other
organization on which the Capital Securities of the corresponding series are
listed, if any) of the record or payment date of such interest, in each case
with respect to interest payments the payment of which is being deferred.
ARTICLE V
EXPENSES AND GUARANTEE
SECTION 5.1
In connection with the offering, sale and issuance of the Debentures of a
series and in connection with the sale of any Securities by the Trust, the
Company, in its capacity as borrower with respect to the Debentures of such
series, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of Debentures of such series, including commissions to the underwriters payable
pursuant to the Purchase Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 6.06 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization of the Trust, the offering,
sale and issuance of the Securities (including commissions to the underwriters
in connection therewith), the fees and
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<PAGE> 14
expenses of the Institutional Trustee, the Delaware Trustee and each Regular
Trustee, the costs and expenses relating to the operation of the Trust,
including, without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets of the Trust);
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or assets of the Trust) and all liabilities, costs
and expenses with respect to such taxes of the Trust.
SECTION 5.2
Upon termination of the Declaration or the removal or resignation of the
Delaware Trustee or the Institutional Trustee, as the case may be, pursuant to
Section 5.7 of the Declaration, the Company shall pay to the Delaware Trustee
or the Institutional Trustee, as the case may be, all amounts owing to the
Delaware Trustee or the Institutional Trustee, as the case may be, under
Sections 10.4 and 10.6 of the Declaration accrued to the date of such
termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
The Debentures and the Trustee's certificate of authentication to be
endorsed thereon are to be substantially in the following forms and are
expressly made a part of this First Supplemental Indenture:
(FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT: This Debenture is a
Global Debenture within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures of this series registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or to a successor Depositary or its
nominee) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any Debenture
of this series issued is registered
12
<PAGE> 15
in the name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment hereon is made
to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
[IF THIS DEBENTURE IS ONE OF A SERIES ORIGINALLY ISSUED PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, AS SPECIFIED PURSUANT TO
SECTION 2.03 OF THE INDENTURE, INSERT THE FOLLOWING UNLESS OTHERWISE DETERMINED
BY THE COMPANY -- THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS DEBENTURE 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 DEBENTURE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH DEBENTURE PRIOR TO THE DATE WHICH IS THREE
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH UNION PLANTERS CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS DEBENTURE (OR ANY PREDECESSOR OF THIS DEBENTURE)
(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 DEBENTURES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT ACQUIRING THE
DEBENTURE 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. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION DATE.]
13
<PAGE> 16
No. _________________
UNION PLANTERS CORPORATION
8.20% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE 2026
UNION PLANTERS CORPORATION, a Tennessee corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ____________ or
registered assigns, the principal sum of ________________ Dollars ($_________ )
on December 15, 2026, and to pay interest on said principal sum from December
12, 1996, or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided for,
semiannually (subject to deferral as set forth herein) in arrears on June 15
and December 15 of each year commencing June 15, 1997, at the rate of 8.20% per
annum until the principal hereof shall have become due and payable, and on any
overdue principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at the same rate per annum compounded
semiannually. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year of twelve 30-day months. In the
event that any date on which interest is payable on this Debenture is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
the Indenture, be paid to the Person in whose name this Debenture (or one or
more Predecessor Securities, as defined in said Indenture) is registered at the
close of business on the Record Date for such interest installment, [which
shall be the close of business on the Business Day next preceding such Interest
Payment Date]. [IF PURSUANT TO THE PROVISIONS OF THE INDENTURE THE DEBENTURES
OF THIS SERIES ARE NO LONGER REPRESENTED SOLELY BY A GLOBAL DEBENTURE,
SUBSTITUTE THE FOLLOWING FOR FOREGOING BRACKETED TEXT -- which shall be the
close of business on the 15th Business Day next preceding such Interest Payment
Date.] Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered holders on such Record
Date and may be paid to the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders of this
series of Debentures not less than 10 days prior to such special record date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture. In the event the Debentures of this
series are issued in non-book entry form, the principal of (and premium, if
any) and the interest on this Debenture shall be payable at the office or
agency of the Trustee (or other paying agent appointed by the Company)
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at
14
<PAGE> 17
the option of the Company by check mailed to the registered holder at such
address as shall appear in the Debt Security Register or by wire transfer to an
account appropriately designated by the holder hereof. Notwithstanding the
foregoing, so long as the holder of this Debenture is the Institutional
Trustee, the payment of the principal of (and premium, if any) and interest on
this Debenture will be made at such place and to such account as may be
designated by such Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
If this Debenture is exchanged in a Registered Exchange Offer prior to the
Record Date for the first Interest Payment Date following such exchange,
accrued and unpaid interest, if any, on this Debenture, up to but not including
the date of issuance of the Exchange Debenture or Exchange Debentures issued in
exchange for this Debenture, shall be paid on the first Interest Payment Date
for such Exchange Debenture or Exchange Debentures to the Securityholder or
Securityholders of such Exchange Debenture or Exchange Debentures on the first
Record Date with respect to such Exchange Debenture or Exchange Debentures. If
this Debenture is exchanged in a Registered Exchange Offer subsequent to the
Record Date for the first Interest Payment Date following such exchange but on
or prior to such Interest Payment Date, then any such accrued and unpaid
interest with respect to this Debenture and any accrued and unpaid interest on
the Exchange Debenture or Exchange Debentures issued in exchange for this
Debenture, through the day before such Interest Payment Date, shall be paid on
such Interest Payment Date to the Securityholder of this Debenture on such
Record Date.
If any time the Trust shall be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States or any other taxing authority, then, in any
such case, the Company shall pay as additional interest on the Debentures held
by the Institutional Trustee such additional amounts as shall be required so
that the net amounts received and retained by the Trust after paying any such
taxes, duties, assessments or other governmental charges will equal the amounts
the Trust and the Institutional Trustee would have received had no such taxes,
duties, assessments or other governmental charges been imposed. [IF THIS
DEBENTURE IS AN INITIAL DEBENTURE INSERT -- In addition, the interest rate
payable on the Debentures of this series is subject to increase as provided in
the Indenture if, pursuant to the Registration Agreement, except as provided in
the following paragraph, either (A) the Exchange Offer Registration Statement
(as such term is defined in the Registration Agreement) is not filed with the
Securities and Exchange Commission (the "Commission") on or prior to the 150th
day following the Closing Date (as such
15
<PAGE> 18
term is defined in the Registration Agreement), (B) the Exchange Offer
Registration Statement is not declared effective by the Commission on or prior
to the 180th day following the Closing Date or (C) the Exchange Offer (as such
term is defined in the Registration Agreement) is not consummated or a Shelf
Registration Statement (as such term is defined in the Registration Agreement)
is not declared effective by the Commission on or prior to the 210th day
following the Closing Date.
In the event that on or after the 150th day following the Closing Date the
Company shall determine in good faith that there is a reasonable likelihood
that, or a material uncertainty as to whether, consummation of the Exchange
Offer would result in an adverse tax consequence to the Company (a "Tax
Contingency"), the Company and the Trust may, at the Company's option and cost,
in lieu of the commencement of the Exchange Offer, file and cause to be
declared effective a Shelf Registration Statement covering resales of the
Initial Debentures and use their best efforts to keep effective the Shelf
Registration Statement until three years after its effective date. To the
extent that such a Tax Contingency exists on the 150th day following the
Closing Date, then clauses (A) and (1) of the preceding paragraph shall not
apply. To the extent that such a Tax Contingency exists and the Company has
filed a Shelf Registration Statement covering resales of the Initial Debentures
by the 180th day following the Closing Date, then clauses (B) and (2) of the
preceding paragraph shall not apply, and to the extent a Tax Contingency exists
on the 210th day following the Closing Date, the period specified in clauses
(C) and (3) of the preceding paragraph will be 240 days.]
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
16
<PAGE> 19
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
UNION PLANTERS CORPORATION
By:
---------------------------
Name:
Title:
[Seal]
By:
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated
----------------
THE FIRST NATIONAL BANK OF CHICAGO, as
Trustee
By
------------------------------------
Authorized Signatory
17
<PAGE> 20
(REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debt Securities of
the Company, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of December 12, 1996, duly executed and
delivered between the Company and The First National Bank of Chicago, as
Trustee (the "Trustee"), as supplemented by the First Supplemented Indenture
dated as of December 12, 1996, between the Company and the Trustee (the
Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of this series of Debt
Securities (referred to herein as the "Debentures") of which this Debenture is
a part. The summary of the terms of this Debenture contained herein does not
purport to be complete and is qualified by reference to the Indenture. By the
terms of the Indenture, the Debt Securities are issuable in series that may
vary as to amount, date of maturity, rate of interest and in other respects as
provided in the Indenture. This series of Debentures is limited in aggregate
principal amount as specified in said First Supplemental Indenture.
Upon the occurrence and continuation of a Tax Event, in certain
circumstances, this Debenture may become due and payable in whole, but not in
part, at a redemption price equal to 100% of the principal amount being
redeemed together with any accrued and unpaid interest thereon, which shall be
paid prior to 11:00 a.m., New York City time, on the date of such redemption or
at such earlier time as the Company determines. The Company shall also have the
right to redeem this Debenture at the option of the Company, in whole or in
part, at any time or from time to time on or after December 15, 2006 (an
"Optional Redemption"), at the call price (the "Call Price") (expressed as a
percentage of the principal amount being redeemed) specified below, plus
accrued and unpaid interest to the redemption date:
<TABLE>
<CAPTION>
If redeemed during the 12-month
period commencing December 15, Call Price
------------------------------ ----------
<S> <C>
2006 103.8340%
2007 103.4506
2008 103.0672
2009 102.6838
2010 102.3004
2011 101.9170
2012 101.5336
2013 101.1502
2014 100.7668
2015 100.3834
2016 100.0000
2017 100.0000
2018 100.0000
2019 100.0000
2020 100.0000
2021 100.0000
</TABLE>
18
<PAGE> 21
<TABLE>
<CAPTION>
If redeemed during the 12-month
period commencing December 15, Call Price
------------------------------ ----------
<S> <C>
2022 100.0000
2023 100.0000
2024 100.0000
2025 100.0000
</TABLE>
Any redemption pursuant to the preceding paragraph will be made, subject
to the receipt by the Company of prior approval by the Board of Governors of
the Federal Reserve System (the "Federal Reserve") if then required under
applicable guidelines or policies of the Federal Reserve, upon not less than 30
days nor more than 60 days' notice, at a redemption price equal to 100% of the
principal amount being redeemed or at the Call Price, as the case may be, plus
any accrued and unpaid interest to the date of such redemption. If the
Debentures are only partially redeemed by the Company pursuant to an Optional
Redemption, the Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided that if, at the time of redemption,
the Debentures are registered as a Global Debenture, the Depositary shall
determine the principal amount of such Debentures held by each of its direct
participants to be redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures of this series for the unredeemed portion hereof will be issued
in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debt Securities of all series affected at the time
outstanding (voting as a class), as specified in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities; provided, however, that no such supplemental indenture
shall among other things, without the consent of the holders of each Debt
Security then outstanding and affected thereby (i) extend the fixed maturity of
any Debt Securities of any series, or reduce the principal amount thereof or
any premium thereon, or reduce any amount payable on redemption thereof, or
reduce the rate or extend the time of payment of interest thereon, or make the
principal of, or interest or premium on, the Debt Securities payable in any
coin or currency other than that provided in the Debt Securities, or impair or
affect the right of any holder of Debt Securities to institute suit for the
payment thereof, or (ii) reduce the aforesaid percentage of Debt Securities,
the holders of which are required to consent to any such supplemental
indenture. The Indenture also contains provisions permitting the holders of a
majority in aggregate principal amount of the Debt Securities of a series at
the time outstanding affected thereby as provided in the Indenture, on behalf
of all of the holders of the Debt Securities of such series, to waive any past
default in the
19
<PAGE> 22
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Debt Securities of such series. Any such consent or
waiver by the registered holder of this Debenture (unless revoked as provided
in the Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
The Company shall have the right, subject to certain conditions, at any
time during the term of the Debentures and from time to time to extend the
interest payment period of the Debentures for up to 10 consecutive semiannual
periods (each, an "Extension Period") as provided in the Indenture.
Notwithstanding the foregoing, no Extension Period may extend beyond the
maturity date of the Debentures. In the event that the Company exercises its
right to extend an interest payment period, then during any Extension Period,
subject to certain exceptions as provided in the Indenture, (i) the Company
shall not declare or pay any dividend on, make any distributions 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, or make
any guarantee payments with respect to the foregoing and (ii) the Company shall
not make any payment of interest on or principal of (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 Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, the Company may
commence a new Extension Period, subject to the requirements contained in the
Indenture.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debt Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Trustee
in the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any Authenticating Agent, any paying agent, any
transfer agent and the Debt Security registrar may deem and treat the
registered holder hereof as the absolute owner hereof (whether or not this
Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and
20
<PAGE> 23
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.
No recourse shall be had for the payment of the principal of, the premium,
if any, on or the interest on this Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
The Debentures of this series are issuable only in registered form without
coupons in minimum denominations of $100,000 and any integral multiple of
$1,000 in excess thereof. A Global Debenture is exchangeable for Debentures in
definitive form only under certain limited circumstances set forth in the
Indenture. Debentures of this series so issued are issuable only in registered
form without coupons in minimum denominations of $100,000 and any integral
multiple of $1,000 in excess thereof. As provided in the Indenture and subject
to certain limitations herein and therein set forth, Debentures of this series
are exchangeable for a like aggregate principal amount of Debentures of this
series of a different authorized denomination, as requested by the holder
surrendering the same.
The Debentures of this series may be transferred only in blocks having an
aggregate principal amount of not less than $100,000. Any transfer of
Debentures of this series in a block having an aggregate principal amount of
less than $100,000 shall be deemed to be void and of no legal effect
whatsoever. Any transferee of Debentures of this series having an aggregate
principal amount of less than $100,000 shall be deemed not to be the holder of
such Debentures for any purpose, including, but not limited to, the receipt of
payments on such Debentures, and such transferee shall be deemed to have no
interest whatsoever in such Debentures.
All terms used in this Debenture that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND
THE DEBENTURES WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1
The Indenture, as supplemented by this First Supplemental Indenture, is in
all respects ratified and confirmed, and this First Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein
and therein provided.
21
<PAGE> 24
SECTION 7.2
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 7.3
This First Supplemental Indenture and each Debenture shall be deemed to be
a contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State without
regard to conflict of laws principles thereof.
SECTION 7.4
In case any one or more of the provisions contained in this First
Supplemental Indenture or in a series of Debentures 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
First Supplemental Indenture or of such series of Debentures, but this First
Supplemental Indenture and such series of Debentures shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
This First Supplemental 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.
22
<PAGE> 25
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, as of the day and year first above written.
UNION PLANTERS CORPORATION
By:
-----------------------------
Name:
Title:
[Seal] Attest:
---------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By:
-----------------------------
Name:
Title:
[Seal] Attest:
---------------------------
Name:
Title:
23
<PAGE> 1
EXHIBIT 4.6
===============================================================================
CAPITAL SECURITIES GUARANTEE AGREEMENT
Union Planters Capital Trust A
Dated as of December 12, 1996
===============================================================================
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Trust Indenture Section of Capital Securities Guarantee
Act of 1939, as amended Agreement
<S> <C>
310(a) ............................................................. 4.1(a)
310(b) ............................................................. 4.1(c)
310(c) ............................................................. Inapplicable
311(a) ............................................................. 2.2(a)
311(b) ............................................................. 2.2(b)
311(c) ............................................................. Inapplicable
312(a) ............................................................. 2.2(a)
312(b) ............................................................. 2.2(b)
313 ............................................................. 2.3
314(a) ............................................................. 2.4
314(b) ............................................................. Inapplicable
314(c) ............................................................. 2.5
314(d) ............................................................. Inapplicable
314(f) ............................................................. Inapplicable
315(a) ............................................................. 3.1(b)
315(b) ............................................................. 2.7
315(c) ............................................................. 3.1(a)
315(d) ............................................................. 3.1(a)
316(a) ............................................................ 5.4(a),2.6
</TABLE>
- -------------
* This Cross-Reference Table does not constitute part of this Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
i
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
CROSS-REFERENCE TABLE*............................................................................................i
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.......................................................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.....................................................................4
SECTION 2.2 Lists of Holders of Securities.......................................................................5
SECTION 2.3 Reports by the Guarantee Trustee.....................................................................5
SECTION 2.4 Periodic Reports to Guarantee Trustee................................................................5
SECTION 2.5 Evidence of Compliance with Conditions Precedent.....................................................5
SECTION 2.6 Events of Default; Waiver............................................................................5
SECTION 2.7 Events of Default; Notice............................................................................6
SECTION 2.8 Conflicting Interests................................................................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee...........................................................6
SECTION 3.2 Certain Rights of Guarantee Trustee..................................................................8
SECTION 3.3 Not Responsible for Recitals or Issuance of Capital Securities Guarantee............................10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility......................................................................10
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee...........................................11
ARTICLE V
GUARANTEE
SECTION 5.1 Capital Securities Guarantee........................................................................12
SECTION 5.2 Waiver of Notice and Demand.........................................................................12
SECTION 5.3 Obligations Not Affected............................................................................12
SECTION 5.4 Rights of Holders...................................................................................13
SECTION 5.5 Guarantee of Payment................................................................................14
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SECTION 5.6 Subrogation.........................................................................................14
SECTION 5.7 Independent Obligations.............................................................................14
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions..........................................................................14
SECTION 6.2 Ranking.............................................................................................15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.........................................................................................15
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.........................................................................................15
SECTION 8.2 Indemnification.....................................................................................16
SECTION 8.3 Compensation; Expenses..............................................................................16
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns..............................................................................17
SECTION 9.2 Amendments..........................................................................................17
SECTION 9.3 Notices.............................................................................................17
SECTION 9.4 Benefit.............................................................................................18
SECTION 9.5 Governing Law.......................................................................................18
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Capital Securities Guarantee"), dated as of
December 12, 1996, is executed and delivered by Union Planters Corporation, a
Tennessee corporation (the "Guarantor"), and The First National Bank of
Chicago, a national banking association, as trustee (the "Guarantee Trustee"),
for the benefit of the Holders (as defined herein) from time to time of the
Capital Securities (as defined herein) of Union Planters Capital Trust A, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of December 12, 1996, among the trustees named therein
of the Issuer, Union Planters Corporation, as sponsor, and the holders from
time to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof securities, having an aggregate
liquidation amount of up to $200,000,000, designated the 8.20% Capital Trust
Pass-through SecuritiesSM (the "Initial Capital Securities") and may issue in
the future, pursuant to the Registration Agreement (as defined in the
Declaration) securities solely to be exchanged for Initial Capital Securities,
with terms that are substantially identical to those of the Initial Capital
Securities (the "Exchange Capital Securities" and together with the Initial
Capital Securities, the "Capital Securities");
WHEREAS, as incentive for the Holders to purchase the Capital Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Capital Securities Guarantee, to pay to the Holders of
Capital Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Capital Securities Guarantee for the benefit of the holders of the
Common Securities (as defined in the Declaration) of the Issuer, except that if
an Event of Default (as defined in the Declaration), has occurred and is
continuing, the rights of holders of the Common Securities to receive Guarantee
Payments under the Common Securities Guarantee are subordinated to the rights
of Holders of Capital Securities to receive Guarantee Payments under this
Capital Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of Capital
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Capital Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Capital Securities Guarantee, unless the context otherwise
requires:
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(a) capitalized terms used in this Capital Securities Guarantee but
not defined in the preamble above have the respective meanings assigned
to them in this Section 1.1;
(b) a term defined anywhere in this Capital Securities Guarantee
has the same meaning throughout;
(c) all references to "the Capital Securities Guarantee" or "this
Capital Securities Guarantee" are to this Capital Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Capital Securities Guarantee to Articles
and Sections are to Articles and Sections of this Capital Securities
Guarantee, unless otherwise specified;
(e) terms defined in the Declaration as at the date of execution of
this Capital Securities Guarantee or in the Trust Indenture Act, as the
case may be, have the same meanings when used in this Capital Securities
Guarantee, unless otherwise defined in this Capital Securities Guarantee
or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Corporate Trust Office" means the office of the Guarantee Trustee at
which the corporate trust business of the Guarantee Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126.
"Covered Person" means any Holder or beneficial owner of Capital
Securities.
"Debentures" means the junior subordinated debentures of the Union
Planters Corporation designated the 8.20% Junior Subordinated Deferrable
Interest Debentures due 2026, held by the Institutional Trustee (as defined in
the Declaration) of the Issuer.
"Declaration Event of Default" means an "Event of Default" as defined in
the Declaration.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Capital Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such Capital
Securities to the extent the Issuer shall have funds available therefor, (ii)
the redemption price, including all accrued and unpaid Distributions to the
date of redemption (the "Redemption Price") to the extent the Issuer has funds
available therefor, with respect to any Capital Securities called for
redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer (other than in connection
with the distribution
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of Debentures to the Holders in exchange for Capital Securities as provided in
the Declaration), the lesser of (a) the aggregate of the liquidation amount and
all accrued and unpaid Distributions on the Capital Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" means The First National Bank of Chicago, a national
banking association, until a Successor Guarantee Trustee has been appointed and
has accepted such appointment pursuant to the terms of this Capital Securities
Guarantee and thereafter means each such Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Capital Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Capital Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.
"Indenture" means the Indenture dated as of December 12, 1996, among the
Guarantor and The First National Bank of Chicago, not in its individual
capacity but solely as trustee, and any indenture supplemental thereto pursuant
to which the Debentures are to be issued to the Institutional Trustee of the
Issuer.
"Liquidation Distribution" has the meaning set forth in the definition of
"Guarantee Payments" herein.
"Majority in liquidation amount of the Capital Securities" means, except
as provided by the Trust Indenture Act, a vote by Holder(s) of Initial Capital
Securities and Exchange Capital Securities, voting together as a class, but
separately from the holders of Common Securities, of more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all Initial
Capital Securities and Exchange Capital Securities then outstanding.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Capital Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
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(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
officer within the Corporate Trust Office of the Guarantee Trustee, including
any vice president, any assistant vice president, any assistant secretary, the
treasurer, any assistant treasurer or other officer of the Corporate Trust
Office of the Guarantee 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.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Trust Securities" means the Common Securities and the Capital Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Capital Securities Guarantee is subject to the provisions
of the Trust Indenture Act that would be required to be part of this
Capital Securities Guarantee if this Capital Securities Guarantee were
qualified under the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Capital
Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
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SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Guarantee Trustee (i) within 14
days after each record date for payment of Distributions, a list, in such
form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Capital Securities ("List of Holders") as
of such record date, provided that the Guarantor shall not be obligated
to provide such List of Holders at any time the List of Holders does not
differ from the most recent List of Holders given to the Guarantee
Trustee by the Guarantor, and (ii) at any other time within 30 days of
receipt by the Guarantor of a written request for a List of Holders as of
a date no more than 14 days before such List of Holders is given to the
Guarantee Trustee. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee
Within 60 days after May 15 of each year, the Guarantee Trustee shall
provide to the Holders of the Capital Securities such reports as are required
by Section 313(a) of the Trust Indenture Act, if any, in the form and in the
manner provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Section 313 (d) of the Trust
Indenture Act. The Guarantor will notify the Guarantee Trustee if and when any
Capital Securities are listed on any stock exchange.
SECTION 2.4 Periodic Reports to Guarantee Trustee
The Guarantor shall provide to the Guarantee Trustee such documents,
reports and information (if any) as required by Section 314 and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent provided for in this Capital
Securities Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Capital Securities may,
voting or consenting as a class, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease
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to exist, and shall be deemed to have been cured, for every purpose of this
Capital Securities Guarantee, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
SECTION 2.7 Events of Default; Notice
(a) The Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to
the Holders of the Capital Securities, notices of all Events of Default
actually known to a Responsible Officer of the Guarantee Trustee, unless
such defaults have been cured before the giving of such notice, provided,
however, that the Guarantee Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Guarantee
Trustee in good faith determines that the withholding of such notice is
in the interests of the Holders of the Capital Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Guarantee Trustee shall have received
written notice, or a Responsible Officer of the Guarantee Trustee charged
with the administration of this Capital Securities Guarantee shall have
obtained actual knowledge, thereof.
SECTION 2.8 Conflicting Interests
The Indenture, the Debt Securities (as defined therein) issued or to be
issued thereunder, the Declaration, the Trust Securities issued or to be issued
thereunder and the Capital Securities Guarantee and Common Securities Guarantee
in connection therewith shall be deemed to be specifically described in this
Capital Securities Guarantee for the purposes of clause (i) of the proviso
contained in Section 310(b)(1) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee
(a) This Capital Securities Guarantee shall be held by the Guarantee
Trustee for the benefit of the Holders of the Capital Securities, and the
Guarantee Trustee shall not transfer this Capital Securities Guarantee to
any Person except a Holder of Capital Securities exercising his or her
rights pursuant to Section 5.4 (b) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act
as Successor Guarantee Trustee. The right, title and interest of the
Guarantee Trustee shall automatically vest in any Successor Guarantee
Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Guarantee Trustee.
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(b) If an Event of Default actually known to a Responsible Officer
of the Guarantee Trustee has occurred and is continuing, the Guarantee
Trustee shall enforce this Capital Securities Guarantee for the benefit
of the Holders of the Capital Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically
set forth in this Capital Securities Guarantee, and no implied covenants
shall be read into this Capital Securities Guarantee against the
Guarantee Trustee. In case an Event of Default has occurred (that has not
been cured or waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the Guarantee Trustee, the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Capital
Securities Guarantee, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Capital Securities Guarantee shall be
construed to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Capital Securities Guarantee, and the Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Capital
Securities Guarantee, and no implied covenants or obligations
shall be read into this Capital Securities Guarantee against
the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Capital Securities Guarantee; but in
the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to
the Guarantee Trustee, the Guarantee Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Capital Securities
Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that such Responsible
Officer of the Guarantee Trustee or the
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Guarantee Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Capital Securities relating
to the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or exercising any trust
or power conferred upon the Guarantee Trustee under this Capital
Securities Guarantee; and
(iv) no provision of this Capital Securities Guarantee shall
require the Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds is not reasonably
assured to it under the terms of this Capital Securities Guarantee
or indemnity, reasonably satisfactory to the Guarantee Trustee,
against such risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall be
fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed, sent or presented by
the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Capital Securities Guarantee shall be sufficiently evidenced
by an Officers' Certificate.
(iii) Whenever, in the administration of this Capital
Securities Guarantee, the Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
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(v) The Guarantee Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel with respect
to legal matters 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. Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee from any court of
competent jurisdiction.
(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Capital
Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee
such security and indemnity, reasonably satisfactory to the
Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses and the expenses of the Guarantee
Trustee's agents, nominees or custodians) and liabilities that
might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested
by the Guarantee Trustee; provided, however, that nothing contained
in this Section 3.2(a) (vi) shall be taken to relieve the Guarantee
Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Capital Securities Guarantee.
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit.
(viii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents, nominees, custodians or attorneys, and the
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder.
(ix) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders of the Capital Securities, and the
signature of the Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Guarantee
Trustee to so act or as to its compliance with any of the terms and
provisions of this Capital Securities Guarantee, both of which
shall be conclusively evidenced by the Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Capital Securities
Guarantee the Guarantee Trustee shall deem it desirable to receive
instructions with respect to
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enforcing any remedy or right or taking any other action hereunder,
the Guarantee Trustee (i) may request instructions from the Holders
of a Majority in liquidation amount of the Capital Securities, (ii)
may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii) shall
be protected in conclusively relying on or acting in accordance
with such instructions.
(xi) The Guarantee Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Capital Securities
Guarantee.
(b) No provision of this Capital Securities Guarantee shall be
deemed to impose any duty or obligation on Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be
illegal or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law to perform any such act or
acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall be
construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Capital Securities
Guarantee
The recitals contained in this Capital Securities Guarantee shall be taken
as the statements of the Guarantor, and the Guarantee Trustee does not assume
any responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Capital Securities
Guarantee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a 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 Person
permitted by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, 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 supervising or
examining authority
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referred to above, then, for the purposes of this Section 4.1(a)
(ii), the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible
to so act under Section 4.1(a), the Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture
Act, the Guarantee Trustee and Guarantor shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee
(a) Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor except
during an Event of Default.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and
has accepted such appointment by written instrument executed by such
Successor Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office
until a Successor Guarantee Trustee shall have been appointed or until
its removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by an
instrument in writing executed by such Successor Guarantee Trustee and
delivered to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery of an instrument of removal or resignation, the Guarantee
Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court
may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions
to act of any Successor Guarantee Trustee.
(f) Upon termination of this Capital Securities Guarantee or removal
or resignation of the Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay
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to the Guarantee Trustee all amounts owing to the Guarantee Trustee under
Sections 8.2 and 8.3 accrued to the date of such termination, removal or
resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Capital Securities Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by the Issuer), as and when due, regardless of any defense, right of set-off or
counterclaim that the Issuer may have or assert. Such obligations will not be
discharged except by payment of the Guarantee Payments in full. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Issuer
to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Capital
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor under
this Capital Securities Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Capital Securities
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Capital
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Capital
Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the
Debentures or any extension of the maturity date of the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders
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pursuant to the terms of the Capital Securities, or any action on the
part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the Capital
Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Guarantee
Trustee in respect of this Capital Securities Guarantee or exercising any
trust or power conferred upon the Guarantee Trustee under this Capital
Securities Guarantee; provided however, that (subject to Section 3.1) the
Guarantee Trustee shall have the right to decline to follow any such
direction if the Guarantee Trustee shall determine that the actions so
directed would be unjustly prejudicial to the Holders not taking part in
such direction or if the Guarantee Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be
taken or if the Guarantor Trustee in good faith by its board of directors
or trustees, executive committees or a trust committee of directors or
trustees and/or Responsible Officers shall determine that the action or
proceedings so directed would involve the Guarantee Trustee in personal
liability.
(b) Any Holder of Capital Securities may institute a legal
proceeding directly against the Guarantor to enforce the Guarantee
Trustee's rights under this Capital Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Guarantee Trustee
or any other Person. The Guarantor waives any right or remedy to require
that any such action be brought first against the Issuer or any other
Person before so proceeding directly against the Guarantor.
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SECTION 5.5 Guarantee of Payment
This Capital Securities Guarantee creates a guarantee of payment and not
of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Capital Securities against the Issuer in respect of any amounts paid to such
Holders by the Guarantor under this Capital Securities Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Capital Securities
Guarantee, if, after giving effect to any such payment, any amounts are due and
unpaid under this Capital Securities Guarantee. If any amount shall be paid to
the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Capital Securities and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Capital Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Capital Securities remain outstanding, if (i) the Guarantor
shall be in default with respect to its Guarantee Payments or other obligations
hereunder, (ii) there shall have occurred and be continuing an Event of Default
or an event of default under the Declaration, or (iii) the Guarantor shall have
selected an Extension Period as provided in the Declaration and such period, or
any extension thereof, shall be continuing, then (a) the Guarantor shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Guarantor's capital stock or rights to acquire such capital stock (other
than (i) purchases or acquisitions of shares of the Guarantor's capital stock
or rights to acquire such capital stock in connection with the satisfaction by
the Guarantor of its obligations under any employee benefit plans, (ii) as a
result of a reclassification of the Guarantor's capital stock or rights to
acquire such capital stock or the exchange or conversion of one class or series
of the Guarantor's capital stock or rights to acquire such capital stock for
another class or series of the Guarantor's capital stock, or rights to acquire
any such stock, (iii) the purchase of fractional interests in shares of the
Guarantor's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or
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exchanged; (iv) dividends or distributions made on the Guarantor's capital
stock or rights to acquire such capital stock with the Guarantor's capital
stock or rights to acquire such capital stock; or (v) any declaration of a
dividend in connection with the implementation of the Guarantor's Share
Purchase Rights Plan (as defined in the Declaration), or the redemption or
repurchase of any such rights pursuant thereto) or make any guarantee payments
with respect to the foregoing and (b) the Guarantor shall not make any payment
of interest, principal or premium, if any, on or repay, repurchase or redeem
any debt securities issued by the Guarantor which rank pari passu with or
junior to the Debentures.
SECTION 6.2 Ranking
This Capital Securities Guarantee will constitute an unsecured obligation
of the Guarantor and will rank subordinate and junior in right of payment to
all present and future Senior Indebtedness (as defined in the Indenture) of the
Guarantor. By their acceptance thereof, each Holder of Capital Securities
agrees to the foregoing provisions of this Capital Securities Guarantee and the
other terms set forth herein.
If a Declaration Event of Default has occurred and is continuing, the
rights of holders of the Common Securities of the Issuer to receive payments
under the Common Securities Guarantee are subordinated to the rights of Holders
of Capital Securities to receive Guarantee Payments.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Capital Securities Guarantee shall terminate (i) upon full payment of
the Redemption Price of all Capital Securities, (ii) upon the distribution of
the Debentures to the Holders of all of the Capital Securities or (iii) upon
full payment of the amounts payable in accordance with the Declaration upon
dissolution of the Issuer. Notwithstanding the foregoing, this Capital
Securities Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder of Capital Securities must restore
payment of any sums paid under the Capital Securities or under this Capital
Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered
Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Capital Securities Guarantee and in a manner that
such Indemnified Person reasonably believed to be within the scope of the
authority
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conferred on such Indemnified Person by this Capital Securities Guarantee
or by law, except that an Indemnified Person shall be liable for any such
loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Issuer or the Guarantor and upon such
information, opinions, reports or statements presented to the Trust or
the Guarantor by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional or expert
competence and who, if selected by such Indemnified Person, has been
selected with reasonable care by such Indemnified Person, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or any other facts pertinent
to the existence and amount of assets from which Distributions to Holders
of Capital Securities might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for, and to hold
each Indemnified Person harmless against, any and all loss, liability, damage,
claim or expense incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including reasonable legal
fees and expenses) of defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The obligation to indemnify as set forth in this Section
8.2 shall survive the termination of this Capital Securities Guarantee.
SECTION 8.3 Compensation; Reimbursement of Expenses
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by it in accordance with any provision of this
Capital Securities Guarantee (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith.
The provisions of this Section 8.3 shall survive the termination of this
Capital Securities Guarantee.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Capital Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Capital Securities then outstanding. Except in connection with any
merger or consolidation of the Guarantor with or into another entity or any
sale, transfer or lease of the Guarantor's assets to another entity, in each
case, to the extent permitted under the Indenture, the Guarantor may not assign
its rights or delegate its obligations under this Capital Securities Guarantee
without the prior approval of the Holders of at least a Majority in liquidation
amount of the Capital Securities.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect the rights
of Holders of Capital Securities in any material respect (in which case no
consent of Holders will be required), this Capital Securities Guarantee may
only be amended with the prior approval of the Holders of at least a Majority
in liquidation amount of the Capital Securities. The provisions of the
Declaration with respect to amendments thereof apply to the giving of such
approval.
SECTION 9.3 Notices
All notices provided for in this Capital Securities Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee
Trustee may give notice of to the Holders of the Capital Securities):
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice
of to the Holders of the Capital Securities and to the Guarantee
Trustee):
Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Attention: Secretary
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Telecopy: (901) 383-6687
(c) If given to any Holder of Capital Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Capital Securities Guarantee is solely for the benefit of the Holders
of the Capital Securities and, subject to Section 3.1(a), is not separately
transferable from the Capital Securities.
SECTION 9.5 Governing Law
THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
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THIS CAPITAL SECURITIES GUARANTEE is executed as of the day and year first
above written.
UNION PLANTERS CORPORATION,
as Guarantor
By: /s/ Benjamin W. Rawlins, Jr.
--------------------------------
Name: Benjamin W. Rawlins, Jr.
Title: Chairman of the Board and
Chief Executive Officer
THE FIRST NATIONAL BANK OF
CHICAGO, as Guarantee Trustee
By: /s/ Melissa G. Weisman
--------------------------------
Name: Melissa G. Weisman
Title: Vice President
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<PAGE> 1
EXHIBIT 4.7
EXECUTION COPY
UNION PLANTERS CAPITAL TRUST A
$200,000,000 8.20% CAPITAL TRUST PASS-THROUGH SECURITIESSM (TRUPSSM)
FULLY AND UNCONDITIONALLY GUARANTEED AS TO DISTRIBUTIONS
AND OTHER PAYMENTS BY
UNION PLANTERS CORPORATION
REGISTRATION AGREEMENT
New York, New York
December 5, 1996
Salomon Brothers Inc
As Representative of the several Initial Purchasers
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Union Planters Capital Trust A (the "Trust"), a statutory business trust
formed under the laws of the state of Delaware by Union Planters Corporation
(the "Company"), proposes to issue and sell to the Initial Purchasers (the
"Initial Purchasers") named in the Purchase Agreement of even date herewith
(the "Purchase Agreement"), for whom you are acting as representative (the
"Representative"), the 8.20% Capital Trust Pass-through Securities (the
"Capital Securities") of the Trust. The issue and sale of the Capital
Securities pursuant to the Purchase Agreement is referred to herein as the
"Initial Placement". The Capital Securities, together with the guarantee of the
Company with respect thereto (the "Guarantee") and the 8.20% Junior
Subordinated Deferrable Interest Debentures due 2026 of the Company (the
"Subordinated Debt Securities"), are collectively referred to herein as the
"Registrable Securities." As an inducement to the Initial Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Initial Purchasers thereunder, the Company and the Trust
agree with you, (i) for your benefit and the benefit of the other Initial
Purchasers and (ii) for the benefit of the holders from time to time of the
Registrable Securities and the Exchange Securities (as defined below),
including the Initial Purchasers (each of the foregoing a "Holder" and together
the "Holders"), as follows:
<PAGE> 2
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Securities" has the meaning set forth in the preamble hereto.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"DTC" means the Depository Trust Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" means the 1 year period following the
Closing Date, exclusive of any period during which any stop order shall be in
effect suspending the effectiveness of the Exchange Offer Registration
Statement.
"Exchange Offer Registration Statement" means a registration statement of
the Company and the Trust on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" means the securities of the Company and the Trust
issued pursuant to a Registered Exchange Offer containing terms that are
identical in all material respects to the terms of the Registrable Securities
except (i) the Exchange Securities shall have been registered for sale under
the Act to Holders and (ii) the interest rate step-up provisions and the
transfer restrictions in the Registrable Securities will be modified or
eliminated, as appropriate, in the Exchange Securities.
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<PAGE> 3
"Exchanging Dealer" means any Holder (which may include the Initial
Purchasers) which is a broker-dealer, electing to exchange Registrable
Securities acquired for its own account as a result of market-making activities
or other trading activities, for Exchange Securities.
"Final Offering Memorandum" means the final Offering Memorandum issued in
connection with the Initial Placement and dated as of December [ ], 1996
relating to the Registrable Securities.
"Guarantee" has the meaning set forth in the preamble hereto.
"Holder" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Initial Purchasers" has the meaning set forth in the preamble hereto.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities or the Exchange Securities, covered by
such Registration Statement, and all amendments and supplements to the
Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Registered Exchange Offer" means the offer to the Holders to issue and
deliver to such Holders, in exchange for the Registrable Securities, a like
principal amount, stated liquidation preference or number, as the case may be,
of the Exchange Securities.
"Registrable Securities" has the meaning set forth in the preamble hereto.
"Registration Statement" means any Exchange Offer Registration Statement
or Shelf Registration Statement that covers any of the Registrable Securities
or the Exchange Securities pursuant to the provisions of this Agreement,
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Representative" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to Section 3
hereof.
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<PAGE> 4
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement of
the Company and the Trust pursuant to the provisions of Section 3 hereof which
covers some or all of the Registrable Securities or Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Subordinated Debt Securities" has the meaning set forth in the preamble
hereto.
"Tax Contingency" has the meaning set forth in Section 2(g) hereof.
"Trust" has the meaning set forth in the preamble hereto.
"underwriter" means any underwriter of Registrable Securities or Exchange
Securities in connection with an offering thereof under a Shelf Registration
Statement.
2. Registered Exchange Offer; Resales of Exchange Securities by Exchanging
Dealers; Private Exchange. (a) The Company and the Trust shall prepare and, not
later than 150 days following the Closing Date, shall file with the Commission
the Exchange Offer Registration Statement with respect to the Registered
Exchange Offer. The Company and the Trust shall use their best efforts to cause
the Exchange Offer Registration Statement to become effective under the Act
within 180 days of the Closing Date. The Company and the Trust shall use their
best efforts to consummate the Registered Exchange Offer within 210 days of the
Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Trust shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to enable each
Holder electing to exchange Registrable Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Company within the
meaning of the Act, acquires the Exchange Securities in the ordinary course of
such Holder's business and has no arrangements with any person to participate
in the distribution of the Exchange Securities) to trade such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Act and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Company and the
Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
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<PAGE> 5
(ii) keep the Registered Exchange Offer open for not less than
30 days and not more than 45 days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The
City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company and the Trust shall:
(i) accept for exchange and cancel all Registrable Securities
tendered and not validly withdrawn pursuant to the Registered
Exchange Offer; and
(ii) issue Exchange Securities to each Holder in a principal
amount, stated liquidation preference or number, as the case may
be, equal to the Registrable Securities accepted for exchange and
canceled pursuant to the Registered Exchange Offer.
(e) The Company, the Trust and the Initial Purchasers on behalf of the
Holders hereby acknowledge that, in order to effect a Registered Exchange
Offer, (i) the Company will be required to issue new subordinated debt
securities to the Trust in exchange for a like principal amount of Subordinated
Debt Securities, (ii) the Trust will be required to issue new capital
securities in exchange for a like amount of stated liquidation preference of
Capital Securities and (iii) the Company will be required to issue a new
guarantee in exchange for the extinguishment of the Guarantee. The parties
hereto further acknowledge that the new subordinated debt securities, capital
securities and guarantee issuable as described in this paragraph, which
collectively constitute the Exchange Securities, shall be identical in all
material respects to the securities they replace, except that (x) such Exchange
Securities shall be registered for sale under the Act to Holders and (y) the
interest rate step-up provisions and the transfer restrictions in the
securities being replaced by the Exchange Securities will be modified or
eliminated, as appropriate, in the Exchange Securities.
(f) The Initial Purchasers, the Company and the Trust acknowledge that,
pursuant to interpretations by the Commission's staff of Section 5 of the Act,
and in the absence of an applicable exemption therefrom, each Exchanging Dealer
is required to deliver a Prospectus in connection with a sale of any Exchange
Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Registrable Securities acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Company and the Trust shall:
(i) include the information set forth in Annex A hereto on the
cover of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement
in a section setting forth details of the
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<PAGE> 6
Exchange Offer, and in Annex C hereto in the underwriting or plan
of distribution section of the Prospectus forming a part of the
Exchange Offer Registration Statement, and include the information
set forth in Annex D hereto in the Letter of Transmittal delivered
pursuant to the Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during
the Exchange Offer Registration Period for delivery by Exchanging
Dealers in connection with sales of Exchange Securities received
pursuant to the Registered Exchange Offer, as contemplated by
Section 4(h) below.
(g) In the event that the Company shall determine in good faith that there
is a reasonable likelihood that, or a material uncertainty exists as to
whether, consummation of the Registered Exchange Offer would result in an
adverse tax consequence to the Company (a "Tax Contingency"), the Company and
the Trust may, in lieu of the commencement of a Registered Exchange Offer,
effect a Shelf Registration of the Registrable Securities pursuant to Section
3.
3. Shelf Registration. If, (i) because of any change in law or applicable
interpretations thereof by the Commission's staff, the Company and the Trust
determine upon advice of their outside counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof, or
(ii) if for any other reason the Exchange Offer Registration Statement is not
declared effective by the Commission within 180 days of the Closing Date, or
(iii) if any Initial Purchaser so requests with respect to Registrable
Securities held by it following consummation of the Registered Exchange Offer
other than "freely tradable" Exchange Securities, or (iv) if any Holder that is
a broker-dealer, is not an affiliate of the Company or the Trust and is not
eligible to participate in the Registered Exchange Offer so requests with
respect to Registrable Securities held by it following the consummation of the
Registered Exchange Offer other than "freely tradable" Exchange Securities (it
being understood that, for purposes of this Section 3, (x) the requirement that
an Initial Purchaser deliver a Prospectus containing the information required
by Items 507 and/or 508 of Regulation S-K under the Act in connection with
sales of Exchange Securities acquired in exchange for such Registrable
Securities shall result in such Exchange Securities being not "freely tradable"
but (y) the requirement that an Exchanging Dealer deliver a Prospectus in
connection with sales of Exchange Securities acquired in the Registered
Exchange Offer in exchange for Registrable Securities acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Securities being not "freely tradable"), the following provisions
shall apply:
(a) The Company and the Trust shall as promptly as practicable file with
the Commission, and shall thereafter use their best efforts to cause to be
declared effective under the Act within (i) 210 days of the Closing Date, or
(ii) 240 days of the Closing Date in the event that a Tax Contingency exists on
the 210th day following the Closing Date, or (iii) promptly in the event of a
request by an Initial Purchaser, a Shelf Registration Statement relating to the
offer and sale of the Registrable Securities or the Exchange Securities, as
applicable, by the Holders from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf Registration
Statement; provided, that with respect to Exchange Securities received
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<PAGE> 7
by an Initial Purchaser in exchange for Registrable Securities constituting any
portion of an unsold allotment, the Company and the Trust may, if permitted by
current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as applicable, in
satisfaction of their obligations under this paragraph (a) with respect
thereto, and any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement; and provided further, that with
respect to a Shelf Registration Statement required pursuant to clause (ii) of
the preceding paragraph, the consummation of a Registered Exchange Offer shall
relieve the Company and the Trust of their obligations under this Section 3(a)
but only in respect of their obligations under such clause (ii).
(b) The Company and the Trust shall each use its best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of three
years from the date the Shelf Registration Statement is declared effective by
the Commission (or a period of one year from the date the Shelf Registration
Statement is declared effective in the case of a Shelf Registration Statement
filed at the request of an Initial Purchaser) or such shorter period that will
terminate upon the earlier of the following: (A) when all the Capital
Securities or Exchange Securities corresponding to such Capital Securities
covered by the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement, (B) when all the Subordinated Debt Securities or
the Exchange Securities relating to such Subordinated Debt Securities issued to
Holders in respect of Capital Securities or Exchange Securities that had not
been sold pursuant to the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or (C) when in the written opinion of
counsel to the Company and the Trust, all outstanding Registrable Securities or
Exchange Securities held by persons that are not affiliates of the Company or
the Trust may be resold without registration under the Act pursuant to Rule
144(k) under the Act or any successor provision thereto (in any such case, such
period being called the "Shelf Registration Period"). Furthermore, the Company
and the Trust shall each use its best efforts, upon the effectiveness of the
Shelf Registration Statement, to promptly upon the request of any Holder to
take any action reasonable necessary to register the sale of any Registrable
Securities or Exchange Securities of such Holder and to identify such Holder as
a selling securityholder. The Company and the Trust shall be deemed not to have
used their best efforts to keep the Shelf Registration Statement effective
during the requisite period if either the Company or the Trust voluntarily
takes any action that would result in Holders of securities covered thereby not
being able to offer and sell such securities during that period, unless (i)
such action is required by applicable law, or (ii) such action is taken by the
Company in good faith and for valid business reasons (not including avoidance
of the Company's obligations hereunder), including the acquisition or
divestiture of assets, so long as the Company promptly thereafter complies with
the requirements of Section 4(l) hereof, if applicable.
4. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
7
<PAGE> 8
(a) The Company and the Trust shall furnish to the Initial Purchasers,
prior to the filing thereof with the Commission, a copy of any Registration
Statement, and each amendment thereof and each amendment or supplement, if any,
to the Prospectus included therein and shall use their best efforts to reflect
in each such document, when so filed with the Commission, such comments as the
Initial Purchasers reasonably may propose.
(b) The Company and the Trust shall ensure that (i) any Registration
Statement and any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto (and each document incorporated therein by
reference) complies in all material respects with the Act and the Exchange Act
and the respective rules and regulations thereunder, (ii) any Registration
Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any Registration Statement,
and any amendment or supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements, in the light of the circumstances under which
they were made, not misleading.
(c) (1) The Company and the Trust shall advise the Initial Purchasers and,
in the case of a Shelf Registration Statement, the Holders of securities
covered thereby, and, if requested by the Initial Purchasers or any such
Holder, confirm such advice in writing:
(i) when the Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company and the Trust shall advise the Initial Purchasers and, in
the case of a Shelf Registration Statement, the Holders of securities covered
thereby, and, in the case of an Exchange Offer Registration Statement, any
Exchanging Dealer that has provided in writing to the Company a telephone or
facsimile number and address for notices, and, if requested by the Initial
Purchasers or any such Holder or Exchanging Dealer, confirm such advice in
writing of:
(i) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) the receipt by the Company or the Trust of any
notification with respect to the suspension of the qualification of
the securities included therein for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
8
<PAGE> 9
(iii) the happening of any event that requires the making of
any changes in the Registration Statement or the Prospectus so
that, as of such date, the statements therein are not misleading
and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were
made) not misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the
requisite changes have been made).
(d) The Company and the Trust shall use their best efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order suspending the
effectiveness of any Registration Statement at the earliest possible time.
(e) On or prior to the time that an Exchange Offer Registration Statement
or Shelf Registration Statement is first effective under the Securities Act,
the Company shall have caused the Capital Securities or Exchange Securities
corresponding to such Capital Securities, respectively, to be duly authorized
for listing, subject in the case of an Exchange Offer Registration Statement to
official notice of issuance, on the New York Stock Exchange as a fixed income
security (or, if such listing is unavailable, as an equity security) and
thereafter shall maintain such listing; or, in the alternative, the Company
shall have taken such action satisfactory to the Initial Purchasers as to have
caused the Capital Securities or Exchange Securities corresponding to such
Capital Securities, respectively, to be freely tradable to the same extent as
if duly authorized for listing on the New York Stock Exchange as described
above.
(f) The Company and the Trust shall furnish to each Holder of securities
included within the coverage of any Shelf Registration Statement, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits filed therewith
(including those incorporated by reference).
(g) The Company and the Trust shall, during the Shelf Registration Period,
deliver to each Holder of securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Company and the Trust each consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of securities in connection with the offering and sale of the
securities covered by the Prospectus or any amendment or supplement thereto.
(h) The Company and the Trust shall furnish to each Exchanging Dealer that
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all exhibits
filed therewith (including those incorporated by reference).
9
<PAGE> 10
(i) The Company and the Trust shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging Dealer
in connection with a sale of Exchange Securities received by it pursuant to the
Registered Exchange Offer; and the Company and the Trust each consent to the
use of the Prospectus or any amendment or supplement thereto by any such
Exchanging Dealer, as aforesaid.
(j) Prior to the Registered Exchange Offer or any other offering of
securities pursuant to any Registration Statement, the Company and the Trust
shall register or qualify or cooperate with the Holders of securities included
therein and their respective counsel in connection with the registration or
qualification of such securities for offer and sale under the securities or
blue sky laws of such jurisdictions as any such Holders reasonably request in
writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the securities covered by
such Registration Statement; provided, however, that in no event shall the
Company or the Trust be required to qualify generally to do business in any
jurisdiction where they are not then so qualified or to take any action which
would subject them to general service of process or to taxation in any such
jurisdiction where they are not then so subject.
(k) The Company and the Trust shall cooperate with the Holders of
Registrable Securities or Exchange Securities, as the case may be, to
facilitate the timely preparation and delivery within the times required by
normal-way settlement of certificates representing securities to be sold
pursuant to any Registration Statement free of any restrictive legends and in
such denominations and registered in such names as Holders may request prior to
sales of securities pursuant to such Registration Statement.
(l) Upon the occurrence of any event contemplated by paragraph (c)(2)(iii)
of this Section 4, the Company and the Trust shall promptly prepare a
post-effective amendment to any Registration Statement or an amendment or
supplement to the related Prospectus or file any other required document so
that, as thereafter delivered to purchasers of the securities included therein,
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(m) Not later than the effective date of any such Registration Statement
hereunder, the Company and the Trust shall provide a CUSIP number for the
Capital Securities or the Exchange Securities corresponding to the Capital
Securities, as the case may be, registered under such Registration Statement.
In the event of and at the time of any distribution of the Subordinated Debt
Securities to Holders, the Company and the Trust shall provide a CUSIP number
for the Subordinated Debt Securities or the Exchange Securities corresponding
to the Subordinated Debt Securities and provide the applicable trustee with
certificates for such securities, in a form eligible for deposit with DTC. The
Company and the Trust shall use their best efforts to cause the CUSIP Service
Bureau to issue the same CUSIP number for all Exchange
10
<PAGE> 11
Securities or Registrable Securities, as the case may be, delivered pursuant to
a Registration Statement as was originally issued for the Registrable
Securities.
(n) The Company and the Trust shall use their best efforts to comply with
all applicable rules and regulations of the Commission and shall make generally
available to their security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act.
(o) The Company and the Trust shall cause the indenture relating to the
Subordinated Debt Securities, the agreement of the Company providing for the
Guarantee and the declaration of trust of the Trust pursuant to which the terms
of the Capital Securities are established, or any corresponding documents in
respect of the Exchange Securities, as the case may be, to be qualified under
the Trust Indenture Act in a timely manner.
(p) The Company and the Trust may require each Holder of securities to be
sold pursuant to any Shelf Registration Statement to furnish to the Company and
the Trust such information regarding the holder and the distribution of such
securities as the Company and the Trust may from time to time reasonably
require for inclusion in such Registration Statement.
(q) The Company and the Trust shall, if requested, promptly incorporate in
a Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters reasonably agree
should be included therein and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as practically after
they are notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(r) In the case of any Shelf Registration Statement, the Company and the
Trust shall enter into such agreements (including underwriting agreements) and
take all other appropriate actions in order to expedite or facilitate the
registration or the disposition of the Registrable Securities or the Exchange
Securities, as the case may be, to be registered thereunder. In connection
therewith, if an underwriting agreement is entered into, the Company and the
Trust shall cause the same to contain indemnification provisions and procedures
no less favorable than those set forth in Section 6 (or such other provisions
and procedures acceptable to the Managing Underwriters, if any), with respect
to all parties to be indemnified pursuant to Section 6.
(s) In the case of any underwritten offering under a Shelf Registration
Statement or at the request of an Initial Purchaser to the extent that an
Initial Purchaser has Registrable Securities or Exchange Securities eligible
for resale thereunder, the Company and the Trust shall (i) make reasonably
available for inspection by a representative of the Holders of a majority of
the securities to be registered thereunder, any Initial Purchaser (if
applicable) and any underwriter participating in any disposition pursuant to
such Registration Statement, and any attorney, accountant or other agent
retained by such Holders, Initial Purchaser or any such underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Company, its subsidiaries and the Trust; (ii) cause the
Company's officers, directors and employees and the trustees of the Trust to
supply all relevant information reasonably requested by
11
<PAGE> 12
the representative of the Holders, the Initial Purchaser (if applicable) or any
such underwriter, attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence examinations;
provided, however, that any information that is designated in writing by the
Company and the Trust, in good faith, as confidential at the time of delivery
of such information shall be kept confidential by the Holders, the Initial
Purchaser (if applicable) or any such underwriter, attorney, accountant or
agent, unless such disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the public generally
or through a third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of securities
registered thereunder, the Initial Purchaser (if applicable) and the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement; (iv)
obtain opinions of counsel to the Company and the Trust (who may be the general
counsel of the Company) and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder, Initial Purchaser (if
applicable) and the underwriters, if any, covering such matters as are
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such Holders, Initial Purchaser
(if applicable) and underwriters; (v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each selling Holder of securities
registered thereunder, the Initial Purchaser (if applicable) and the
underwriters, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with primary
underwritten offerings; and (vi) deliver such documents and certificates as may
be reasonably requested by any such Holders, the Initial Purchaser (if
applicable) or the Managing Underwriters, if any, including those to evidence
compliance with Section 4(l) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company and the
Trust. The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 4(s) shall be performed at (A) the effectiveness of such
Registration Statement and each post-effective amendment thereto and (B) each
closing under any underwriting or similar agreement as and to the extent
required thereunder.
5. Registration Expenses. The Company shall bear all expenses incurred in
connection with the performance of its obligations under Sections 2, 3 and 4
hereof and, in the event of any Shelf Registration Statement, will reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
designated by the majority of the Holders of the Registrable Securities or
Exchange Securities, as the case may be, covered by such Shelf Registration
Statement to act as counsel for the Holders in connection therewith, and, in
the case of any Exchange Offer Registration Statement, will reimburse the
Initial Purchasers for the reasonable fees and disbursements of counsel acting
in connection therewith.
6. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company agrees to indemnify and hold harmless the
Trust, each Holder of
12
<PAGE> 13
securities covered thereby (including each Initial Purchaser and, with respect
to any Prospectus delivery as contemplated in Section 4(i) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each such
Holder and each person who controls any such Holder within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (including all documents incorporated
by referenced therein) as originally filed or in any amendment thereof, or in
any preliminary prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any such Holder specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses of, as
provided in Section 6(d), any underwriters of Securities registered under a
Shelf Registration Statement, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders provided in
this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(r)
hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated in Section 4(i) hereof, each Exchanging Dealer) severally
agrees to indemnify and hold harmless the Company, the Trust, their respective
directors, officers and trustees (including each officer or trustee of the
Company or the Trust who signs such Registration Statement), and each person
who controls the Company or the Trust within the meaning of either the Act or
the Exchange Act to the same extent as the foregoing indemnity from the Company
to each such Holder, but only with reference to written information relating to
such Holder furnished to the Company by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 or
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 6, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
13
<PAGE> 14
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any
subsequent Holder of any Registrable Security or Exchange Security be
responsible, in the aggregate, for any amount in excess of the purchase
discount or commission applicable to such security, or in the case of a
Exchange Security, applicable to the Security which was exchangeable into such
Exchange Security, as set forth on the cover page of the Final Offering
Memorandum, nor shall any underwriter be responsible for any amount in excess
of the underwriting discount or commission applicable to the securities
purchased by such underwriter under the Registration Statement which resulted
in such Losses. If the allocation provided by the
14
<PAGE> 15
immediately preceding sentence is unavailable for any reason, the indemnifying
party and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of such indemnifying party, on the one hand, and such indemnified party,
on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the sum of (x)
the total net proceeds from the Initial Placement (before deducting expenses)
as set forth on the cover page of the Final Offering Memorandum and (y) the
total amount of additional interest which the Company was not required to pay
as a result of registering the securities covered by the Registration Statement
which resulted in such Losses. Benefits received by the Initial Purchasers
shall be deemed to be equal to the total purchase discounts and commissions as
set forth on the cover page of the Final Offering Memorandum, and benefits
received by any other Holders shall be deemed to be equal to the value of
receiving Registrable Securities or Exchange Securities, as applicable,
registered under the Act. Benefits received by any underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth
on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand. The parties agree that it would not be
just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company and the Trust within the meaning of either the
Act or the Exchange Act, each officer of the Company or trustee of the Trust
who shall have signed the Registration Statement and each director of the
Company or trustee of the Trust shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of
this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Company or any of the officers, directors or controlling persons referred to in
Section 6 hereof, and will survive the sale by a Holder of securities covered
by a Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Trust have not, as of
the date hereof, entered into, nor shall they, on or after the date hereof,
enter into, any agreement with respect to their securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
15
<PAGE> 16
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company and the Trust have obtained the written
consent of the Holders of at least a majority of the Capital Securities then
outstanding (or, after the consummation of any Exchange Offer in accordance
with Section 2 hereof, of Exchange Securities then outstanding); provided that,
with respect to any matter that directly or indirectly affects the rights of
any Initial Purchaser hereunder, the Company shall obtain the written consent
of each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
Holders may be given by the majority of such Holders, determined on the basis
of securities being sold rather than registered under such Registration
Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company;
(ii) if to the Initial Purchasers, initially at the respective
addresses set forth in the Purchase Agreement; and
(iii) if to the Company or the Trust, initially at their
addresses set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchasers, the Company or the Trust by notice
to the others may designate additional or different addresses for subsequent
notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company and the Trust thereto, subsequent Holders of Registrable Securities
and/or Exchange Securities. The Company and the Trust hereby agree to extend
the benefits of this Agreement to any Holder of Registrable Securities and/or
Exchange Securities and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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<PAGE> 17
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State.
(h) Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or approval
of Holders of a specified number, or percentage of principal amount of,
Registrable Securities or Exchange Securities is required hereunder,
Registrable Securities or Exchange Securities, as applicable, held by the
Company or its Affiliates (other than subsequent Holders of Registrable
Securities or Exchange Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Registrable Securities or
Exchange Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
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<PAGE> 18
Please confirm your agreement by having your authorized officer sign a
copy of this Registration Agreement in the space set forth below and returning
the signed copy to us.
Very truly yours,
UNION PLANTERS CORPORATION
By: /s/ Benjamin W. Rawlins, Jr.
-----------------------------------
Name: Benjamin W. Rawlins, Jr.
Title: Chairman of the Board and
Chief Executive Officer
UNION PLANTERS CAPITAL TRUST A
By: /s/ Jackson W. Moore
-----------------------------------
Name: Jackson W. Moore
as Regular Trustee
By: /s/ John W. Parker
-----------------------------------
Name: John W. Parker
as Regular Trustee
Accepted:
SALOMON BROTHERS INC
By: /s/ Charles R. Fendig
---------------------------------------------
Name: Charles R. Fendig
Title: Associate
Date: December 5, 1996
<PAGE> 1
EXHIBIT 12
Page 1 of 2
Union Planters Corporation
Computation of Ratio of Earnings to Combined
Fixed Charges & Preferred Stock Dividends
(Fixed Charges Without Deposit Interest)
<TABLE>
<CAPTION>
Years Ended December 31,
--------------------------------------------------------------------------
1996 1995 1994 1993 1992
--------------------------------------------------------------------------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C>
Earnings before Income Taxes,
Extraordinary Item & Accounting Changes $ 204,264 $ 259,404 $ 145,597 $ 165,504 $ 106,012
Add:
Interest Expense & Amortization
of Debt Issuance Costs 124,783 92,622 67,204 36,187 29,826
Portion of Operating Lease Rents
Representative of the Interest Factor 3,682 4,391 3,699 4,224 3,432
------------ ---------- --------- --------- ---------
Earnings As Adjusted $ 332,729 $ 356,417 $ 216,500 $ 205,915 $ 139,270
============ ========== ========= ========= =========
Preferred Dividend Requirements $ 6,944 $ 8,613 $ 9,898 $ 9,813 $ 6,883
Ratio of Earnings before Income
Taxes to Net Earnings (1) 153% 150% 145% 145% 135%
------------ ---------- --------- --------- ---------
Preferred Dividend Factor 10,624 12,920 14,352 14,229 9,292
------------ ---------- --------- --------- ---------
Fixed Charges:
Interest on Short-term borrowings 54,739 34,068 28,277 8,203 9,086
Interest on FHLB Advances & other
Long-term Debt 70,044 58,554 38,927 27,984 20,740
------------ ---------- --------- --------- ---------
Total Interest Expense & Amortization
of Debt Issuance Costs 124,783 92,622 67,204 36,187 29,826
------------ ---------- --------- --------- ---------
Capitalized Interest Expense 0 0 0 0 0
Portion of Operating Lease Rents
Representative of the Interest
Factor 3,682 4,391 3,699 4,224 3,432
------------ ---------- --------- --------- ---------
Combined Fixed Charges &
Preferred Stock Dividends $ 139,089 $ 109,933 $ 85,255 $ 54,640 $ 42,550
============ ========== ========= ========= =========
Ratio of Earnings to Combined
Fixed Charges & Preferred Stock
Dividends (2) 2.39 x 3.24 x 2.54 x 3.77 x 3.27 x
============ ========== ========= ========= =========
</TABLE>
(1) Represents earnings before income taxes divided by earnings before
extraordinary item and accounting changes which adjusts preferred stock
dividends to a pretax basis.
(2) For the purpose of computing these ratios, earnings represent earnings
before income taxes, extraordinary item and accounting changes, preferred
dividend factor and fixed charges. Fixed charges represent the preferred
dividend factor, interest expense (exclusive of interest on deposits in one
case and inclusive of interest in the other), capitalized interest expense,
amortization of debt issuance costs and one-third (the portion deemed
representative of the interest factor) of all operating rents.
<PAGE> 2
EXHIBIT 12
Page 2 of 2
Union Planters Corporation
Computation of Ratio of Earnings to Combined
Fixed Charges & Preferred Stock Dividends
(Fixed Charges With Deposit Interest)
<TABLE>
<CAPTION>
Years Ended December 31,
-----------------------------------------------------------------------
1996 1995 1994 1993 1992
-----------------------------------------------------------------------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C>
Earnings before Income Taxes,
Extraordinary Item & Accounting Changes $204,264 $259,404 $145,597 $165,504 $106,012
Add:
Interest Expense & Amortization
of Debt Issuance Costs 574,647 515,286 384,925 334,499 345,465
Portion of Operating Lease Rents
Representative of the Interest Factor 3,682 4,391 3,699 4,224 3,432
------- ------- ------- ------- -------
Earnings As Adjusted $782,593 $779,081 $534,221 $504,227 $454,909
======= ======= ======= ======= =======
Preferred Dividend Requirements $ 6,944 $ 8,613 $ 9,898 $ 9,813 $ 6,883
Ratio of Earnings before Income
Taxes to Net Earnings (1) 153% 150% 145% 145% 135%
------- ------- ------- ------- -------
Preferred Dividend Factor 10,624 12,920 14,352 14,229 9,292
------- ------- ------- ------- -------
Fixed Charges:
Deposits 449,864 422,664 317,721 298,312 315,639
Interest on Short-term borrowings 54,739 34,068 28,277 8,203 9,086
Interest on FHLB Advances & other 27,984
Long-term Debt 70,044 58,554 38,927 14,291 20,740
------- ------- ------- ------- -------
Total Interest Expense & Amortization
of Debt Issuance Costs 574,647 515,286 384,925 348,790 345,465
------- ------- ------- ------- -------
Capitalized Interest Expense 0 0 0 0 0
Portion of Operating Lease Rents
Representative of the Interest
Factor 3,682 4,391 3,699 4,224 3,432
------- ------- ------- ------- -------
Combined Fixed Charges &
Preferred Stock Dividends $588,953 $532,597 $402,976 $367,243 $358,189
======= ======= ======= ======= =======
Ratio of Earnings to Combined
Fixed Charges & Preferred Stock
Dividends (2) 1.33 x 1.46 x 1.33 x 1.37 x 1.27 x
======= ======= ======= ======= =======
</TABLE>
(1) Represents earnings before income taxes divided by earnings before
extraordinary item and accounting changes which adjusts preferred stock
dividends to a pretax basis.
(2) For the purpose of computing these ratios, earnings represent earnings
before income taxes, extraordinary item and accounting changes, preferred
dividend factor and fixed charges. Fixed charges represent the preferred
dividend factor, interest expense (exclusive of interest on deposits in one
case and inclusive of interest in the other), capitalized interest expense,
amortization of debt issuance costs and one-third (the portion deemed
representative of the interest factor) of all operating rents.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated January 16, 1996, which appears on page 37 of the 1996 Annual Report to
Shareholders of Union Planters Corporation, which is incorporated by reference
in Union Planters Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
/s/ Price Waterhouse LLP
Memphis, Tennessee
March 19, 1997
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) _____
_________________________________
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
___________________________________
UNION PLANTERS CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
TENNESSEE 62-0859007
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
UNION PLANTERS ADMINSITRATIVE CENTER
7130 GOODLETT FARMS PARKWAY
MEMPHIS, TENNESSEE 38018
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
JUNIOR SUBORDINATED DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 12th day of March, 1997.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /S/ RICHARD D. MANELLA
RICHARD D. MANELLA
VICE PRESIDENT
* EXHIBITS 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK
OF CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA INC. FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED BY
SECTION 321(b) OF THE ACT
March 12, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Union Planters
Corporation and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /S/ RICHARD D. MANELLA
RICHARD D. MANELLA
VICE PRESIDENT
4
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Call Date: 12/31/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460
Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400 <-
DOLLAR AMOUNTS IN -------- -------
THOUSANDS RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . . . . 0081 4,586,399 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . . . 0071 5,224,838 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) . . . . . 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) . . . . 1773 3,335,304 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . . . . 0276 4,157,626 3.a.
b. Securities purchased under agreements to resell . . . . . . . . . . 0277 96,125 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 23,448,929 4.a.
b. LESS: Allowance for loan and lease losses. . . . . . . . . . . . . . RCFD 3123 419,373 4.b.
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . . . 2125 23,029,556 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . 3545 7,888,514 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . . 2145 701,700 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . . 2150 11,061 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . . 2130 62,681 8.
9. Customers' liability to this bank on acceptances outstanding 2155 480,933 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . . 2143 303,014 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . . 2160 1,745,155 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . . 2170 51,622,906 12.
</TABLE>
__________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
[24SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
---------------- ------------
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) . . . . . . . . . . . . . . RCON 2200 22,032,796 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . . RCON 6631 9,190,670 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . RCON 6636 12,842,126 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . RCFN 2200 10,861,857 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . . . RCFN 6631 285,745 13.b.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . RCFN 6636 10,576,382 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . . . RCFD 0278 2,639,255 14.a.
b. Securities sold under agreements to repurchase . . . . . . RCFD 0279 66,564 14.b.
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . RCON 2840 121,352 15.a.
b. Trading Liabilities . . . . . . . . . . . . . . . . . . . . RCFD 3548 5,793,742 15.b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . . . RCFD 2332 2,665,232 16.a.
b. With original maturity of more than one year . . . . . . RCFD 2333 58,105 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding . . . RCFD 2920 480,933 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . . RCFD 3200 1,400,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . RCFD 2930 1,199,147 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . RCFD 2948 47,604,654 21.
22. Limited-Life preferred stock and related surplus . . . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . . RCFD 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) . . RCFD 3839 2,934,523 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . RCFD 3632 865,652 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . RCFD 8434 18,441 26.b.
27. Cumulative foreign currency translation adjustments . . . . . RCFD 3284 (1,222) 27.
28. Total equity capital (sum of items 23 through 27) . . . . . . RCFD 3210 4,018,252 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . . RCFD 3300 51,622,906 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external
Number
auditors as of any date during 1995 . . . . . . . . . . . . . RCFD 6724 . .... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
___________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE> 1
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 205499
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) _____
_________________________________
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
___________________________________
UNION PLANTERS CAPITAL TRUST A
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 62-6317227
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
UNION PLANTERS ADMINISTRATIVE CENTER
7130 GOODLETT FARMS PARKWAY
MEMPHIS, TENNESSEE 38018
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
UNION PLANTERS CAPITAL TRUST A
CAPITAL SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 12th day of March, 1997.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /S/ RICHARD D. MANELLA
RICHARD D. MANELLA
VICE PRESIDENT
* EXHIBITS 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK
OF CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA INC. FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 12, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of Union Planters Capital Trust A, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request
therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /S/ RICHARD D. MANELLA
RICHARD D. MANELLA
VICE PRESIDENT
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN C400 <-
THOUSANDS RCFD BIL MIL THOU
--------- ---- ------------ -----
<S> <C> <C> <C> <C>
SETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . 0081 4,586,399 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . 0071 5,224,838 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) . 1773 3,335,304 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . 0276 4,157,626 3.a.
b. Securities purchased under agreements to resell . . . . . . . 0277 96,125 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 23,448,929 4.a.
b. LESS: Allowance for loan and lease losses . . . . . . . . . . RCFD 3123 419,373 4.b.
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . RCFD 3128 0
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . 2125 23,029,556 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . 3545 7,888,514 5.
6. Premises and fixed assets (including capitalized leases) . . . . 2145 701,700 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . 2150 11,061 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . 2130 62,681 8.
9. Customers' liability to this bank on acceptances outstanding . . 2155 480,933 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . 2143 303,014 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . 2160 1,745,155 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . 2170 51,622,906 12.
</TABLE>
__________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
---------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) . . . . . . . . . . . . . . RCON 2200 22,032,796 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . . RCON 6631 9,190,670 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . RCON 6636 12,842,126 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . RCFN 2200 10,861,857 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . . . RCFN 6631 285,745 13.b.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . RCFN 6636 10,576,382 13.B.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . . RCFD 0278 2,639,255 14.a.
b. Securities sold under agreements to repurchase . . . . . RCFD 0279 66,564 14.b.
15. a. Demand notes issued to the U.S. Treasury . . . . . . . RCON 2840 121,352 15.a.
b. Trading Liabilities. . . . . . . . . . . . . . . . . . . RCFD 3548 5,793,742 15b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . . RCFD 2332 2,665,232 16.a.
b. With original maturity of more than one year . . . . . RCFD 2333 58,105 16b.
17. Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 285,671 17.
18. Bank'sliability on acceptance executed and outstanding . . RCFD 2920 480,933 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . RCFD 3200 1,400,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . RCFD 2930 1,199,147 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . RCFD 2948 47,604,654 21.
22. Limited-Life preferred stock and related surplus . . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . RCFD 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) . RCFD 3839 2,934,523 25.
26. a. Undivided profits and capital reserves . . . . . . . . . RCFD 3632 865,652 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . RCFD 8434 18,441 26.b.
27. Cumulative foreign currency translation adjustments . . . . RCFD 3284 (1,222) 27.
28. Total equity capital (sum of items 23 through 27) . . . . . RCFD 3210 4,018,252 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . RCFD 3300 51,622,906 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1995 . . . . . . . . . . . . . . . . . . . . RCFD 6724 . . . . . N/A M.1.
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
___________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE> 1
EXHIBIT 25.3
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
----
-----------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
(IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
UNION PLANTERS CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
TENNESSEE 62-0859007
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
UNION PLANTERS ADMINSITRATIVE CENTER
7130 GOODLETT FARMS PARKWAY
MEMPHIS, TENNESSEE 38018
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEE OF CAPITAL SECURITIES OF
UNION PLANTERS CAPITAL TRUST A
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 12th day of March, 1997.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /S/ RICHARD D. MANELLA
RICHARD D. MANELLA
VICE PRESIDENT
* EXHIBITS 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK
OF CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA INC. FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 12, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Guarantee of Union Planters
Corporation relating to Union Planters Capital Trust A, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /S/ RICHARD D. MANELLA
RICHARD D. MANELLA
VICE PRESIDENT
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400 <-
DOLLAR AMOUNTS IN ------ ----------
THOUSANDS RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . . 0081 4,586,399 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . 0071 5,224,838 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) . . 1773 3,335,304 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . . 0276 4,157,626 3.a.
b. Securities purchased under agreements to resell . . . . . . . . 0277 96,125 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 23,448,929 4.a.
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . RCFD 3123 419,373 4.b.
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . 2125 23,029,556 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . 3545 7,888,514 5.
6. Premises and fixed assets (including capitalized leases) . . . . . 2145 701,700 6.
7. Other real estate owned (from Schedule RC-M) . . . . 2150 11,061 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . 2130 62,681 8.
9. Customers' liability to this bank on acceptances outstanding. . . . 2155 480,933 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . . . . . 2143 303,014 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . 2160 1,745,155 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . . . . . 2170 51,622,906 12.
</TABLE>
- ---------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
---------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . RCON 2200 22,032,796 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . . . RCON 6631 9,190,670 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . RCON 6636 12,842,126 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . . RCFN 2200 10,861,857 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . . . . RCFN 6631 285,745 13.b.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . RCFN 6636 10,576,382
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . . . RCFD 0278 2,639,255 14.a.
b. Securities sold under agreements to repurchase . . . . . . RCFD 0279 66,564 14.b.
15. a. Demand notes issued to the U.S. Treasury . . . . . . RCON 2840 121,352 15.a.
b. Trading Liabilities . . . . . . . . . . . . . . . . . . . RCFD 3548 5,793,742 15b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . . . RCFD 2332 2,665,232 16.a.
b. With original maturity of more than one year . . . . . . RCFD 2333 58,105 16b.
17. Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding RCFD 2920 480,933 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . . RCFD 3200 1,400,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . RCFD 2930 1,199,147 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . RCFD 2948 47,604,654 21.
22. Limited-Life preferred stock and related surplus . . . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . . RCFD 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,934,523 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . RCFD 3632 865,652 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . RCFD 8434 18,441 26.b.
27. Cumulative foreign currency translation adjustments . . . . . RCFD 3284 (1,222) 27.
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,018,252 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . . RCFD 3300 51,622,906 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external
Number
auditors as of any date during 1995 . . . . . . . . . . . . . . . . . . . . ..RCFD 6724 . .... N/A M.1.
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
___________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
UNION PLANTERS CAPITAL TRUST A
OFFER TO EXCHANGE ITS
8.20% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS
DATED , 1997
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON , 1997, UNLESS THE EXCHANGE OFFER IS EXTENDED.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS: THE FIRST NATIONAL BANK OF
CHICAGO.
BY MAIL/OVERNIGHT DELIVERY/HAND:
THE FIRST NATIONAL BANK OF CHICAGO
c/o FIRST CHICAGO TRUST COMPANY OF NEW YORK
14 Wall Street
8th Floor, Window 2
New York, New York 10005
ATTN: Corporate Trust Administration
TO CONFIRM BY TELEPHONE OR FOR INFORMATION:
(212) 240-8801
FACSIMILE TRANSMISSIONS:
(212) 240-8938
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN THE FACSIMILE NUMBER AS SET FORTH ABOVE DOES NOT CONSTITUTE A
VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same meaning
given them in the Prospectus (as defined below).
This Letter of Transmittal is to be completed by holders of Old Capital
Securities (as defined below) either if (i) Old Capital Securities are to be
forwarded herewith or (ii) tenders of Old Capital Securities are to be made by
book-entry transfer to an account maintained by The First National Bank of
Chicago (the "Exchange Agent") at The Depository Trust Company ("DTC") pursuant
to the procedures set forth under "The Exchange Offer -- Procedures for
Tendering Old Capital Securities" in the Prospectus and an Agent's Message (as
defined herein) is not delivered.
Holders of Old Capital Securities whose certificates (the "Certificates")
for such Old Capital Securities are not immediately available or who cannot
deliver their Certificates and all other required documents to the Exchange
Agent on or prior to the Expiration Date (as defined in the Prospectus) or who
cannot complete the procedures for book-entry transfer on or prior to the
Expiration Date, must tender their Old Capital Securities according to the
guaranteed delivery procedures set forth in "The Exchange Offer -- Procedures
for Tendering Old Capital Securities" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE
AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
<PAGE> 2
<TABLE>
<S> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
- ---------------------------------------------------------------------------------------------------------------------
NAME AND ADDRESS OF REGISTERED HOLDER OLD CAPITAL SECURITIES TENDERED
(PLEASE FILL IN IF BLANK) (ATTACH ADDITIONAL LIST IF NECESSARY)
- ---------------------------------------------------------------------------------------------------------------------
LIQUIDATION AMOUNT NUMBER OF BENEFICIAL
OF OLD CAPITAL HOLDERS FOR
CERTIFICATE SECURITIES TENDERED WHOM OLD CAPITAL
NUMBERS* (IF LESS THAN ALL)** SECURITIES ARE HELD
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
TOTAL AMOUNT
TENDERED:
- ---------------------------------------------------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Old Capital Securities may be tendered in whole or in part in denominations of $100,000 and integral multiples of
$1,000 in excess thereof, provided that if any Old Capital Securities are tendered for exchange in part, the
untendered Liquidation Amount thereof must be $100,000 or any integral multiple of $1,000 in excess thereof. All
Old Capital Securities held shall be deemed tendered unless a lesser number is specified in this column.
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS (defined in Instruction
1) ONLY.
[ ] CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED BY BOOK-
ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH
DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
DTC Account Number:
Transaction Code Number:
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name of Registered Holder:
Window Ticket Number (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Institution which Guaranteed Delivery:
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution:
DTC Account Number:
2
<PAGE> 3
Transaction Code Number:
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD CAPITAL
SECURITIES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH
ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD CAPITAL
SECURITIES FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER
TRADING ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
Address:
Area Code and Telephone Number:
Contact Person:
3
<PAGE> 4
Ladies and Gentlemen:
The undersigned hereby tenders to Union Planters Capital Trust A, a
Delaware business trust (the "Issuer") and Union Planters Corporation, a
Tennessee corporation, as Sponsor ("UPC"), the above-described aggregate
Liquidation Amount of the Issuer's 8.20% Capital Securities (the "Old Capital
Securities") in exchange for a like aggregate Liquidation Amount of the Issuer's
8.20% Capital Securities (the "New Capital Securities") which have been
registered under the Securities Act of 1933 (the "Securities Act"), upon the
terms and subject to the conditions set forth in the Prospectus dated
, 1997 (as the same may be amended or supplemented from time to time, the
"Prospectus"), receipt of which is acknowledged, and in this Letter of
Transmittal (which, together with the Prospectus, constitutes the "Exchange
Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Old Capital Securities tendered herewith in accordance with the
terms and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Issuer all right, title and interest in and to such Old Capital
Securities as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of UPC and
the Issuer in connection with the Exchange Offer) with respect to the tendered
Old Capital Securities, with full power of substitution (such power of attorney
being deemed to be an irrevocable power coupled with an interest), subject only
to the right of withdrawal described in the Prospectus, to (i) deliver
Certificates for Old Capital Securities to the Issuer together with all
accompanying evidences of transfer and authenticity to, or upon the order of,
the Issuer, upon receipt by the Exchange Agent, as the undersigned's agent, of
the New Capital Securities to be issued in exchange for such Old Capital
Securities, (ii) present Certificates for such Old Capital Securities for
transfer, and to transfer the Old Capital Securities on the books of the Issuer,
and (iii) receive for the account of the Issuer all benefits and otherwise
exercise all rights of beneficial ownership of such Old Capital Securities, all
in accordance with the terms and conditions of the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE OLD
CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR
EXCHANGE, THE ISSUER WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES,
AND THAT THE OLD CAPITAL SECURITIES TENDERED HEREBY ARE NOT SUBJECT TO ANY
ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND
DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY UPC, THE ISSUER OR THE EXCHANGE AGENT
TO BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER
OF THE OLD CAPITAL SECURITIES TENDERED HEREBY, AND THE UNDERSIGNED WILL COMPLY
WITH ITS OBLIGATIONS UNDER THE REGISTRATION RIGHTS AGREEMENT. THE UNDERSIGNED
HAS READ AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name and address of the registered holder of the Old Capital Securities
tendered hereby should be printed above, if they are not already set forth
above, as they appear on the Certificates representing such Old Capital
Securities. The Certificate numbers and the Old Capital Securities that the
undersigned wishes to tender should be indicated in the appropriate boxes above.
If any tendered Old Capital Securities are not exchanged pursuant to the
Exchange Offer for any reason, or if Certificates are submitted for more Old
Capital Securities than are tendered or accepted for exchange, Certificates for
such non-exchanged or non-tendered Old Capital Securities will be returned (or,
in the case of Old Capital Securities tendered by book-entry transfer, such Old
Capital Securities will be credited to an account maintained at DTC), without
expense to the tendering holder, promptly following the expiration or
termination of the Exchange Offer.
The undersigned understands that tenders of Old Capital Securities pursuant
to any one of the procedures described under "The Exchange Offer -- Procedures
for Tendering Old Capital Securities" in the Prospectus and in the instructions
herein will, upon UPC's and the Issuer's acceptance for exchange of such
tendered Old Capital Securities, constitute a binding agreement between the
undersigned, UPC and the Issuer upon the terms and subject to the conditions of
the Exchange Offer. The undersigned recognizes that, under certain circumstances
set forth in the Prospectus, UPC and the Issuer may not be required to accept
for exchange any of the Old Capital Securities tendered hereby.
4
<PAGE> 5
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the New Capital
Securities be issued in the name of the undersigned or, in the case of a
book-entry transfer of Old Capital Securities, that such New Capital Securities
be credited to the account indicated above maintained at DTC. If applicable,
substitute Certificates representing Old Capital Securities not exchanged or not
accepted for exchange will be issued to the undersigned or, in the case of a
book-entry transfer of Old Capital Securities, will be credited to the account
indicated above maintained at DTC. Similarly, unless otherwise indicated under
"Special Delivery Instruction" below, please deliver New Capital Securities to
the undersigned at the address shown below the undersigned's signature.
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (I) THE
UNDERSIGNED IS NOT AN "AFFILIATE" OF UPC OR THE ISSUER WITHIN THE MEANING OF
RULE 405 UNDER THE SECURITIES ACT, (II) ANY NEW CAPITAL SECURITIES TO BE
RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY COURSE OF ITS
BUSINESS, (III) THE UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY
PERSON TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES
ACT) OF NEW CAPITAL SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER, AND (IV) IF
THE UNDERSIGNED IS NOT A BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED IN, AND
DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE
SECURITIES ACT) OF SUCH NEW CAPITAL SECURITIES. BY TENDERING OLD CAPITAL
SECURITIES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS LETTER OF
TRANSMITTAL, A HOLDER OF OLD CAPITAL SECURITIES WHICH IS A BROKER-DEALER
REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY
THE STAFF OF THE DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND EXCHANGE
COMMISSION TO THIRD PARTIES, THAT (A) SUCH OLD CAPITAL SECURITIES HELD BY THE
BROKER-DEALER ARE HELD ONLY AS A NOMINEE, OR (B) SUCH OLD CAPITAL SECURITIES
WERE ACQUIRED BY SUCH BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF
MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES AND IT WILL DELIVER A
PROSPECTUS (AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME) MEETING THE
REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH NEW
CAPITAL SECURITIES (PROVIDED THAT, BY SO ACKNOWLEDGING AND BY DELIVERING A
PROSPECTUS, SUCH BROKER-DEALER WILL NOT BE DEEMED TO ADMIT THAT IT IS AN
"UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT).
UPC AND THE ISSUER HAVE AGREED THAT, SUBJECT TO THE PROVISIONS OF THE
REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS, AS IT MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY A PARTICIPATING BROKER-DEALER IN
CONNECTION WITH RESALES OF NEW CAPITAL SECURITIES RECEIVED IN EXCHANGE FOR OLD
CAPITAL SECURITIES, WHERE SUCH OLD CAPITAL SECURITIES WERE ACQUIRED BY SUCH
PARTICIPATING BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING
ACTIVITIES OR OTHER TRADING ACTIVITIES, FOR A PERIOD ENDING 180 DAYS AFTER THE
EXPIRATION DATE (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES
DESCRIBED IN THE PROSPECTUS) OR, IF EARLIER, WHEN ALL SUCH NEW CAPITAL
SECURITIES HAVE BEEN DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER. IN THAT
REGARD, EACH PARTICIPATING BROKER-DEALER WHO ACQUIRED OLD CAPITAL SECURITIES FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES, BY
TENDERING SUCH OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF TRANSMITTAL,
AGREES THAT, UPON RECEIPT OF NOTICE FROM UPC OR THE ISSUER OF THE OCCURRENCE OF
ANY EVENT OR THE DISCOVERY OF ANY FACT WHICH MAKES ANY STATEMENT CONTAINED OR
INCORPORATED BY REFERENCE IN THE PROSPECTUS UNTRUE IN ANY MATERIAL RESPECT OR
WHICH CAUSES THE PROSPECTUS TO OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER
TO MAKE THE STATEMENTS CONTAINED OR INCORPORATED BY REFERENCE THEREIN, IN THE
LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING OR OF THE
OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE REGISTRATION RIGHTS
AGREEMENT, SUCH PARTICIPATING BROKER-DEALER WILL SUSPEND THE SALE OF NEW CAPITAL
SECURITIES PURSUANT TO THE PROSPECTUS UNTIL UPC OR THE ISSUER HAVE AMENDED OR
SUPPLE-
5
<PAGE> 6
MENTED THE PROSPECTUS TO CORRECT SUCH MISSTATEMENT OR OMISSION AND HAVE
FURNISHED COPIES OF THE AMENDED OR SUPPLEMENTED PROSPECTUS TO THE PARTICIPATING
BROKER-DEALER OR UPC OR THE ISSUER HAS GIVEN NOTICE THAT THE SALE OF THE NEW
CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE, IF UPC OR THE ISSUER
GIVES SUCH NOTICE TO SUSPEND THE SALE OF THE NEW CAPITAL SECURITIES, IT SHALL
EXTEND THE 180-DAY PERIOD REFERRED TO ABOVE DURING WHICH PARTICIPATING
BROKER-DEALERS ARE ENTITLED TO USE THE PROSPECTUS IN CONNECTION WITH THE RESALE
OF NEW CAPITAL SECURITIES BY THE NUMBER OF DAYS DURING THE PERIOD FROM AND
INCLUDING THE DATE OF THE GIVING OF SUCH NOTICE TO AND INCLUDING THE DATE WHEN
PARTICIPATING BROKER-DEALERS SHALL HAVE RECEIVED COPIES OF THE SUPPLEMENTED OR
AMENDED PROSPECTUS NECESSARY TO PERMIT RESALES OF THE NEW CAPITAL SECURITIES OR
TO AND INCLUDING THE DATE ON WHICH UPC OR THE ISSUER HAS GIVEN NOTICE THAT THE
SALE OF NEW CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
Holders of Old Capital Securities whose Old Capital Securities are accepted
for exchange will not receive accumulated Distributions on such Old Capital
Securities for any period from and after the Last Distribution date to which
Distributions have been paid or duly provided for on such Old Capital Securities
prior to the original issue date of the New Capital Securities or, if no such
Distributions have been paid or duly provided for, will not receive any accrued
Distributions on such Old Capital Securities, and the undersigned waives the
right to receive any interest on such Old Capital Securities accrued from and
after such Distribution date or, if no such Distributions have been paid or duly
provided for, from and after December 12, 1996.
All authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
6
<PAGE> 7
HOLDERS SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON PAGE 14)
(NOTE: SIGNATURES MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by registered holder exactly as name appears on Certificates
for the Old Capital Securities hereby tendered or on a security position
listing, or by any person authorized to become the registered holder by
endorsements and documents transmitted herewith (including such opinions of
counsel, certifications and other information as may be required by the Issuer
or the Exchange Agent for the Old Capital Securities to comply with the
restrictions on transfer applicable to the Old Capital Securities). If signature
is by an attorney-in-fact, executor, administrator, trustee, guardian, officer
of a corporation or another acting in a fiduciary capacity or representative
capacity, please set forth the signer's full title. See Instruction 5.
---------------------------------------
(Signature of Holder)
Date:
- --------------------------- , 1997
Name:
- --------------------------------------------------------------------------------
(Please Print)
Capacity (full title):
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
- --------------------------------------------------------------------------------
Tax Identification or Social Security Number:
- ----------------------------------------------------------------------------
GUARANTEE OF SIGNATURE
(SEE INSTRUCTIONS 3 AND 5)
---------------------------------------
(Authorized Signature)
Date:
- --------------------------- , 1997
Name of firm:
- --------------------------------------------------------------------------------
Capacity (full title):
- --------------------------------------------------------------------------------
(Please Print)
Address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
- --------------------------------------------------------------------------------
7
<PAGE> 8
SPECIAL INSTRUCTIONS
(SEE INSTRUCTIONS 2, 5 AND 6)
To be completed ONLY if the New Capital Securities or any Old Capital
Securities that are not tendered are to be issued in the name of someone other
than the registered holder of the Old Capital Securities whose name appears
above.
Issue
[ ] New Capital Securities and/or
[ ] Old Capital Securities not tendered
to:
Name:
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
- --------------------------------------------------------------------------------
Tax Identification or Social Security Number:
- ----------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the New Capital Securities or any Old Capital
Securities that are not tendered are to be sent to someone other than the
registered holder of the Old Capital Securities whose name appears above, or to
such registered holder at an address other than that shown above.
Mail
[ ] New Capital Securities
[ ] Old Capital Securities not tendered
to:
Name:
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
- --------------------------------------------------------------------------------
Tax Identification or Social Security Number:
- ----------------------------------------------------------------------------
8
<PAGE> 9
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY
PROCEDURE. This Letter of Transmittal is to be completed either if (a)
Certificates are to be forwarded herewith or (b) tenders are to be made pursuant
to the procedures for tender by book-entry transfer set forth under "The
Exchange Offer -- Procedures for Tendering Old Capital Securities" in the
Prospectus and an Agent's Message is not delivered. Certificates, or book-entry
confirmation of a book-entry transfer of such Old Capital Securities into the
Exchange Agent's account at DTC, as well as this Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at its address set forth
herein on or prior to the Expiration Date. Tenders by book-entry transfer may
also be made by delivering an Agent's Message in lieu of this Letter of
Transmittal. The term "book-entry confirmation" means a confirmation of
book-entry transfer of Old Capital Securities into the Exchange Agent's account
at DTC. The term "Agent's Message" means a message, transmitted by DTC to and
received by the Exchange Agent and forming a part of a book-entry confirmation,
which states that DTC has received an express acknowledgment from the tendering
participant, which acknowledgement states that such participant has received and
agrees to be bound by the Letter of Transmittal (including the representations
contained herein) and that the Issuer and UPC may enforce the Letter of
Transmittal against such participant. Old Capital Securities may be tendered in
whole or in part in the Liquidation Amount of $100,000 (100 Capital Securities)
and integral multiples of $1,000 in excess thereof, provided that, if any Old
Capital Securities are tendered for exchange in part, the untendered Liquidation
Amount thereof must be $100,000 (100 Capital Securities) or any integral
multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital Securities and (i) whose Old
Capital Securities are not immediately available or (ii) who cannot deliver
their Old Capital Securities, this Letter of Transmittal and all other required
documents to the Exchange Agent on or prior to the Expiration Date or (iii) who
cannot complete the procedures for delivery by book-entry transfer on or prior
to the Expiration Date, may tender their Old Capital Securities by properly
completing and duly executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedures set forth under "The Exchange Offer -- Procedures
for Tendering Old Capital Securities" in the Prospectus. Pursuant to such
procedures: (i) such tender must be made by or through an Eligible Institution
(as defined below); (ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form made available by UPC and the
Issuer; must be received by the Exchange Agent on or prior to the Expiration
Date; and (iii) the Certificates (or a book-entry confirmation (as defined in
the Prospectus)) representing all tendered Old Capital Securities, in proper
form for transfer, together with a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees and
any other documents required by this Letter of Transmittal, must be received by
the Exchange Agent within three New York Stock Exchange, Inc. trading days after
the date of execution of such Notice of Guaranteed Delivery, all as provided in
"The Exchange Offer -- Procedures for Tendering Old Capital Securities" in the
Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Old Capital
Securities to be properly tendered pursuant to the guaranteed delivery
procedure, the Exchange Agent must receive a Notice of Guaranteed Delivery on or
prior to the Expiration Date. As used herein and in the Prospectus, "Eligible
Institution" means a firm or other entity identified in Rule 17Ad-15 under the
Exchange Act as "an eligible guarantor institution," including (as such terms
are defined therein) (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association.
THE METHOD OF DELIVERY OF CERTIFICATES, AS WELL AS THIS LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF
THE TENDERING HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH
RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS
RECOMMENDED. IN
9
<PAGE> 10
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY ON OR
PRIOR TO THE EXPIRATION DATE.
Neither UPC nor the Issuer will accept any alternative, conditional or
contingent tenders. Each tendering holder, by execution of a Letter of
Transmittal (or facsimile thereof), waives any right to receive any notice of
the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered holder
(which term, for purposes of this document, shall include any participant
in DTC whose name appears on a security position listing as the owner of
the Old Capital Securities) of Old Capital Securities tendered herewith,
unless such holder has completed either the box entitled "Special Issuance
Instructions" or the box entitled "Special Delivery Instructions" above, or
(ii) such Old Capital Securities are tendered for the account of a
firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the signature on
this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Capital Securities" is inadequate, the Certificate numbers
and/or the Liquidation Amount of Old Capital Securities and any other required
information should be listed on a separate signed schedule which is attached to
this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Capital
Securities will be accepted only in the Liquidation amount of $100,000 (100
Capital Securities) and integral multiples of $1,000 in excess thereof, provided
that if any Old Capital Securities are tendered for exchange in part, the
untendered Liquidation Amount thereof must be $100,000 (100 Capital Securities)
or any integral multiple of $1,000 in excess thereof. If less than all the Old
Capital Securities evidenced by any Certificate submitted are to be tendered,
fill in the Liquidation Amount of Old Capital Securities which are to be
tendered in the box entitled "Liquidation Amount of Old Capital Securities
Tendered (If less than All)." In such case, a new Certificate for the remainder
of the Old Capital Securities that were evidenced by the Old Certificate will be
sent to the holder of the Old Capital Securities, promptly after the Expiration
Date unless the appropriate boxes on this Letter of Transmittal are completed.
All Old Capital Securities represented by Certificates delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Capital Securities may
be withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective, a written, telegraphic, telex or facsimile
transmission of such notice of withdrawal must be received by the Exchange Agent
at its address set forth above or in the Prospectus on or prior to the
Expiration Date. Any such notice of withdrawal must specify the name of the
person who tendered the Old Capital Securities to be withdrawn, the aggregate
Liquidation Amount of Old Capital Securities to be withdrawn, and (if
Certificates for Old Capital Securities have been tendered) the name of the
registered holder of the Old Capital Securities as set forth on the Certificates
for the Old Capital Securities, if different from that of the person who
tendered such Old Capital Securities. If Certificates for the Old Capital
Securities have been delivered or otherwise identified to the Exchange Agent,
then prior to the physical release of such Certificates for the Old Capital
Securities, the tendering holder must submit the serial numbers above on the
particular Certificates for the Old Capital Securities to be withdrawn and the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution, except in the case of Old Capital Securities tendered for the
account of an Eligible Institution. If Old Capital Securities have been tendered
pursuant to the procedures for book-entry transfer set forth under "The Exchange
Offer -- Procedures for Tendering Old Capital Securities," the notice of
withdrawal must specify the name and number of the account at DTC to be credited
with the withdrawal of Old Capital Securities, in which case a notice of
withdrawal will be effective if delivered to the Exchange Agent by written,
telegraphic, telex or facsimile transmission on or prior to the Expiration Date.
Withdrawals of tenders of Old Capital Securities may not be rescinded. Old
Capital Securities properly withdrawn will not be deemed validly tendered for
purposes of the Exchange Offer, but may be retendered at any subsequent time on
or prior to the Expiration Date by following any of the procedures described in
the Prospectus under "The Exchange Offer -- Procedures for Tendering Old Capital
Securities."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by UPC and the Issuer, in
their sole discretion, whose determination shall be final and binding on all
parties.
10
<PAGE> 11
UPC and the Issuer, any affiliates or assigns of UPC and the Issuer, the
Exchange Agent or any other person shall not be under any duty to give any
notification of any irregularities in any notice of withdrawal or incur any
liability for failure to give any such notification. Any Old Capital Securities
which have been tendered but which are withdrawn on or prior to the Expiration
Date will be returned to the holder thereof without cost to such holder promptly
after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder of the Old Capital
Securities tendered hereby, the signature must correspond exactly with the name
as written on the face of the Certificates without alteration, enlargement or
any change whatsoever.
If any of the Old Capital Securities tendered hereby are owned of record by
two or more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Old Capital Securities are registered in different names on
several Certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal (or facsimiles thereof) as there are different
registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing and must submit proper evidence
satisfactory to UPC and the Issuer, in their sole discretion, of such persons'
authority to so act.
When this Letter of Transmittal is signed by the registered holder of the
Old Capital Securities listed and transmitted hereby, no endorsement of
Certificates or separate bond powers are required unless New Capital Securities
are to be issued in the name of a person other than the registered holder.
Signatures on such Certificates or bond powers must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder of the Old Capital Securities listed, the Certificates must be
endorsed or accompanied by appropriate bond powers, signed exactly as the name
of the registered holder appears on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other information as
UPC, the Issuer or the Exchange Agent may require in accordance with the
restrictions on transfer applicable to the Old Capital Securities. Signatures on
such Certificates or bond powers must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Capital Securities
are to be issued in the name of a person other than the signer of this Letter of
Transmittal, or if New Capital Securities are to be sent to someone other than
the signer of this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be completed.
Certificates for Old Capital Securities not exchanged will be returned by mail
or, if tendered by book-entry transfer, by crediting the account indicated above
maintained at DTC unless the appropriate boxes on this Letter of Transmittal are
completed. See Instruction 4.
7. IRREGULARITIES. UPC and the Issuer will determine, in their sole
discretion, all questions as to the form of documents, validity, eligibility
(including time of receipt) and acceptance for exchange of any tender of Old
Capital Securities, which determination shall be final and binding on all
parties. UPC and the Issuer reserve the absolute right to reject any and all
tenders determined by either of them not to be in proper form or the acceptance
of which, or exchange for, may, in the view of counsel to UPC or the Issuer, be
unlawful. UPC and the Issuer also reserve the absolute right, subject to
applicable law, to waive any of the conditions of the Exchange Offer set forth
in the Prospectus under "The Exchange Offer -- Certain Conditions to the
Exchange Offer" or any conditions or irregularity in any tender of Old Capital
Securities of any particular holder whether or not similar conditions or
irregularities are waived in the case of other holders. UPC's and the Issuer's
interpretation of the terms and conditions of the Exchange Offer (including this
Letter of Transmittal and the instructions hereto) will be final and binding. No
tender of Old Capital Securities will be deemed to have been validly made until
all irregularities with respect to such tender have been cured or waived. UPC,
the Issuer, any affiliates or assigns of UPC, the Issuer, the Exchange Agent, or
any other person shall not be under any duty to give notification of any
irregularities in tenders or incur any liability for failure to give such
notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions and
requests for assistance may be directed to the Exchange Agent at its address and
telephone number set forth on the front of this
11
<PAGE> 12
Letter of Transmittal. Additional copies of the Prospectus, the Notice of
Guaranteed Delivery and the Letter of Transmittal may be obtained from the
Exchange Agent or from your broker, dealer, commercial bank, trust company or
other nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income
tax law, a holder whose tendered Old Capital Securities are accepted for
exchange is required to provide the Exchange Agent with such holder's correct
taxpayer identification number ("TIN") on the Substitute Form W-9 below. If the
Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service (the "IRS") may subject the holder or other payee to a $50 penalty. In
addition, payments to such holders or other payees with respect to Old Capital
Securities exchanged pursuant to the Exchange Offer may be subject to 31% backup
withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the
tendering holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 2 is checked, the
holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60 day period following the date of the Substitute Form W-9.
If the holder furnishes the Exchange Agent with its TIN within 60 days after the
date of the Substitute Form W-9, the amounts retained during the 60 days after
the date of the Substitute Form W-9, the amounts retained during the 60 day
period will be remitted to the holder and no further amounts shall be retained
or withheld from payments made to the holder thereafter. If, however, the holder
has not provided the Exchange Agent with its TIN within such 60 day period,
amounts withheld will be remitted to the IRS as backup withholding. In addition,
31% of all payments made thereafter will be withheld and remitted to the IRS
until a correct TIN is provided.
The holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Old Capital Securities or of the last transferee appearing on the transfers
attached to, or endorsed on, the Old Capital Securities. If the Old Capital
Securities are registered in more than one name or are not in the name of the
actual owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
number to report.
Certain holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, to avoid possible erroneous withholding. A foreign person may qualify
as an exempt recipient by submitting a properly completed IRS Form W-8. Signed
under penalties of perjury, attesting to that holder's exempt status. Please
consult the enclosed "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9" for additional guidance on which holders are
exempt from backup withholding.
Backup withholding is not an additional U.S. Federal income tax. Rather,
the U.S. Federal income tax liability of a person subject to backup withholding
will be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained.
10. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificates
representing Old Capital Securities have been lost, destroyed or stolen, the
holder should promptly notify the Exchange Agent. The holder will then be
instructed as to the steps that must be taken in order to replace the
Certificates. This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificates have been followed.
11. SECURITY TRANSFER TAXES. Holders who tender their Old Capital
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, New Capital Securities are to be delivered
to, or are to be issued in the name of, any person other than the registered
holder of the Old Capital Securities tendered, or if a transfer tax is imposed
for any reason other than the exchange of Old Capital Securities in connection
with the Exchange Offer, then the amount of any such transfer tax (whether
imposed on the registered holder or any other persons) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering holder.
12
<PAGE> 13
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE
EXPIRATION DATE.
PAYER'S NAME: THE FIRST NATIONAL BANK OF CHICAGO
<TABLE>
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX Social security number
FORM W-9 AT RIGHT AND CERTIFY BY SIGNING AND DATING OR ------------------------
BELOW Employer identification number
------------------------------------------------------------------------------------------
Department of the Treasury
Internal Revenue Service
------------------------------------------------------------------------------------------
PART 2 -- CERTIFICATION -- Under Penalties of perjury, I certify
that: (1) The number shown on this form is my correct Taxpayer
Identification Number (or I am waiting for a number to be issued
to me) and (2) I am not subject to backup withholding either
because: (a) I am exempt from backup withholding, or (b) I have
not been notified by the Internal Revenue Service (the "IRS")
PAYER'S REQUEST FOR that I am subject to backup withholding as a result of a failure
TAXPAYER
IDENTIFICATION to report all interest or dividends, or (c) the IRS has notified
NUMBER (TIN) me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS -- You must cross out item (2) above
if you have been notified by the IRS that you are currently
subject to backup withholding because of underreporting interest
or dividends on your tax return. However, if after being notified
by the IRS that you are subject to backup withholding, you
received another notification from the IRS that you are no longer
subject to backup withholding, do not cross out such item (2).
THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR CONSENT TO ANY
PROVISION OF THIS DOCUMENT OTHER THAN THE CERTIFICATIONS REQUIRED
TO AVOID BACKUP WITHHOLDING.
PART 3 --
SIGNATURE DATE
Awaiting TIN [ ]
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER AND CONSENT
SOLICITATION. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 3 OF SUBSTITUTE FORM W-9
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (a) I have mailed or
delivered an application to receive a taxpayer identification number to
the appropriate Internal Revenue Service Center or Social Security
Administration Office or (b) I intend to mail or deliver an application in
the near future. I understand that if I do not provide a taxpayer
identification number within thirty (30) days, 31 percent of all
reportable payments made to me thereafter will be withheld until I provide
a number.
<TABLE>
<S> <C>
- ------------------------------------------------------------ ------------------------------------------
SIGNATURE DATE
</TABLE>
- --------------------------------------------------------------------------------
13
<PAGE> 1
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
8.20% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
UNION PLANTERS CAPITAL TRUST A
FULLY AND UNCONDITIONALLY GUARANTEED
BY UNION PLANTERS CORPORATION
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates for the Trust's (as defined below) 8.20% Capital Securities due
December 12, 2026 (the "Old Capital Securities") are not immediately available,
(ii) Old Capital Securities, the Letter of Transmittal and all other required
documents cannot be delivered to The First National Bank of Chicago (the
"Exchange Agent") on or prior to the Expiration Date (as defined in the
Prospectus referred to below) or (iii) the procedures for delivery by book-entry
transfer cannot be completed on a timely basis. This Notice of Guaranteed
Delivery may be delivered by hand, overnight courier or mail, or transmitted by
facsimile transmission, to the Exchange Agent. See "The Exchange
Offer -- Procedures for Tendering Old Capital Securities" in the Prospectus.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE FIRST NATIONAL BANK OF CHICAGO
BY MAIL/OVERNIGHT DELIVERY/HAND:
The First National Bank of Chicago
c/o First Chicago Trust Company of New York
14 Wall Street
8th Floor, Window 2
New York, New York 10005
Attn: Corporate Trust Administration
TO CONFIRM BY TELEPHONE OR FOR INFORMATION:
(212) 240-8801
FACSIMILE TRANSMISSIONS:
(212) 240-8938
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEE DELIVERY VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
Ladies and Gentlemen:
The undersigned hereby tenders to Union Planters Capital Trust A, a
Delaware business trust (the "Trust"), upon the terms and subject to the
conditions set forth in the Prospectus dated , 1997 (as the same may
be amended or supplemented from time to time, the "Prospectus"), and the related
Letter of Transmittal (which together constitute the "Exchange Offer"), receipt
of which is hereby acknowledged, the aggregate principal amount of Old Capital
Securities set forth below pursuant to the guaranteed delivery procedures set
forth in the Prospectus under the caption "The Exchange Offer -- Procedures for
Tendering Old Capital Securities."
<PAGE> 2
<TABLE>
<CAPTION>
===========================================================================================================================
NAME(S) OF REGISTERED CERTIFICATE NO(S). ADDRESS(ES): AREA CODE AND
AGGREGATE PRINCIPAL AMOUNT TENDERED HOLDER(S) (IF AVAILABLE): TELEPHONE NUMBER(S):
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
===========================================================================================================================
===========================================================================================================================
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
If Old Capital Securities will be tendered by book-entry transfer, provide
the following information:
Signature(s):
- ---------------------------------------------------------
DTC Account Number:
- ---------------------------------------------
Date:
- ---------------------------------------------------------------
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
2
<PAGE> 3
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker, municipal securities dealer,
government securities broker, government securities dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program (each of the foregoing being
referred to as an "Eligible Institution"), hereby guarantees to deliver to the
Exchange Agent, at its address set forth above, either the Old Capital
Securities tendered hereby in proper form for transfer, or confirmation of the
book-entry transfer of such Old Capital Securities to the Exchange Agent's
account at The Depositary Trust Company ("DTC"), pursuant to the procedures for
book-entry transfer set forth in the Prospectus, in either case together with
one or more properly completed and duly executed Letter(s) of Transmittal (or
facsimile thereof) and any other required documents within five business days
after the date of execution of this Notice of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letter(s) of
Transmittal and the Old Capital Securities tendered hereby to the Exchange Agent
within the time period set forth above and that failure to do so could result in
a financial loss to the undersigned.
Name of Firm:
---------------------------------------------------------------------
(Authorized Signature)
--------------------------------------------------------------
(Title)
Address:
-------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
-----------------------------------------------------
Date:
- ---------------------------------------------
NOTE: DO NOT SEND OLD CAPITAL SECURITIES WITH THIS NOTICE OF GUARANTEED
DELIVERY. ACTUAL SURRENDER OF OLD CAPITAL SECURITIES MUST BE MADE PURSUANT TO,
AND BE ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF
TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS.
3
<PAGE> 1
EXHIBIT 99.3
[FORM OF EXCHANGE AGENCY AGREEMENT]
___________, 1997
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
Ladies and Gentlemen:
UNION PLANTERS CORPORATION, a Tennessee corporation, as Depositor
("UPC") and UNION PLANTERS CAPITAL TRUST A, a Delaware business trust (the
"Trust") hereby appoint THE FIRST NATIONAL BANK OF CHICAGO ("FNBC") to act as
exchange agent (the "Exchange Agent") in connection with an exchange offer by
UPC and the Trust to exchange up to $200,000,000 aggregate Liquidation Amount of
the Trust's 8.20% Capital Securities due December 12, 2026 (the "New Capital
Securities"), which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for a like aggregate Liquidation Amount of the
Trust's outstanding 8.20% Capital Securities due December 12, 2026 (the "Old
Capital Securities" and together with the New Capital Securities, the "Capital
Securities"). The terms and conditions of the exchange offer are set forth in a
Prospectus dated _______________, 1997 (as the same may be amended or
supplemented from time to time, the "Prospectus") and in the related Letter of
Transmittal, which together constitute the "Exchange Offer." The registered
holders of the Capital Securities are hereinafter referred to as the "Holders."
Capitalized terms used herein and not defined shall have the respective meanings
described thereto in the Prospectus.
On the basis of the representations, warranties and agreements of UPC,
the Trust and FNBC contained herein and subject to the terms and conditions
hereof, the following sets forth the agreement between UPC, the Trust and FNBC
as Exchange Agent for the Exchange Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
a. UPC and the Trust hereby authorize FNBC to act as Exchange Agent in
connection with the Exchange Offer and FNBC agrees to act as Exchange Agent in
connection with the Exchange Offer. As Exchange Agent, FNBC will perform those
services as are outlined herein, including, but not limited to, accepting
tenders of Old Capital Securities and communicating generally regarding the
Exchange Offer with
1
