<PAGE>
As filed with the Securities and Exchange Commission on April 16, 1999
Registration No.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
NATIONAL COMMERCE BANCORPORATION
(Exact Name of Registrant as Specified in its Charter)
Tennessee 62-0784645
(I.R.S. Employer Identification
(State or Other Jurisdiction of Number)
Incorporation or Organization)
One Commerce Square, Memphis, Tennessee 38150
(901) 523-3434
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
Charles A. Neale, Esq.
Vice President and General Counsel
NATIONAL COMMERCE BANCORPORATION
One Commerce Square, Memphis, Tennessee 38150
(901) 523-3371
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
---------------
With Copies to:
Philip A. Theodore, Esq. John W. White, Esq.
King & Spalding Cravath, Swaine & Moore
191 Peachtree Street 825 Eighth Avenue
Atlanta, Georgia 30303-1763 New York, New York 10019
(404) 572-4676 (212) 474-1000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, subject to
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Amount Maximum Aggregate Amount of
Title of Each Class of Securities to be to be Offering Price Offering Registration
Registered Registered(1)(2) per Unit(1)(2) Price(1)(3) Fee(4)
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<S> <C> <C> <C> <C>
Primary Offering
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Debt Securities..........................
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Preferred Stock, no par value per share
(5).....................................
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Common Stock, par value $2.00 per share
(6).....................................
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Subtotal: $300,000,000 $ 83,400
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Secondary Offering
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Common Stock, par value $2.00 per share
(7)..................................... 6,000,000 $24.15625 $144,937,500 $ 40,293
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Subtotal: 6,000,000 $24.15625 $144,937,500 $ 40,293
- ---------------------------------------------------------------------------------------------------------
Total: $444,937,500 $123,693
</TABLE>
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<PAGE>
(1) There are being registered under this Registration Statement such
indeterminate number of shares of Common Stock and Preferred Stock of the
Registrant, and such indeterminate principal amount of Debt Securities of
the Registrant, as shall have an aggregate initial offering price not to
exceed $300,000,000. If any Debt Securities are issued at an original issue
discount, then the securities registered shall include such additional Debt
Securities as may be necessary such that the aggregate initial public
offering price of all securities issued pursuant to this Registration
Statement will equal $300,000,000. Any securities registered under this
Registration Statement may be sold separately or as units with other
securities registered under this Registration Statement. The proposed
maximum initial offering price per unit will be determined, from time to
time, by the Registrant in connection with the issuance by the Registrant
of the securities registered under this Registration Statement.
(2) Not specified with respect to each class of securities to be registered
pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
(3) Estimated solely for the purpose of calculating the registration fee. Any
offering of Debt Securities denominated in any foreign currency or currency
unit will be treated as the equivalent in U.S. dollars based on the
exchange rate applicable to the purchase of such Debt Securities from the
Registrant. No separate consideration will be received for Common Stock,
Preferred Stock or Debt Securities that are issued upon conversion or
exchange of Debt Securities or Preferred Stock registered hereunder.
(4) Calculated pursuant to Rule 457 of the rules and regulations under the
Securities Act.
(5) Including such indeterminate number of shares of Preferred Stock as may
from time to time be issued (i) at indeterminate prices or (ii) upon
conversion or exchange of Debt Securities registered hereunder, to the
extent any such Debt Securities are, by their terms, convertible into
Preferred Stock.
(6) Including such indeterminate number of shares of Common Stock as may from
time to time be issued (i) at indeterminate prices or (ii) upon conversion
or exchange of Debt Securities or Preferred Stock registered hereunder, to
the extent any of such Debt Securities or shares of Preferred Stock are, by
their terms, convertible into Common Stock.
(7) Pursuant to Rule 457(c), the offering price and registration fee are
computed on the basis of the average high and low prices of the Common
Stock, as reported by the Nasdaq Stock Market's National Market on April
13, 1999.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
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 SECTION 8(A), MAY
DETERMINE.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information contained in this Prospectus is not complete and may be +
+changed. We may not sell these securities until the registration statement +
+filed with the Securities and Exchange Commission relating to these +
+securities is effective. This Prospectus is not an offer to sell these +
+securities and we are not soliciting an offer to buy these securities in any +
+state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS SUBJECT TO COMPLETION
DATED, APRIL 16, 1999
$300,000,000
NATIONAL COMMERCE BANCORPORATION
From time to time, we may sell any of the following securities:
-- DEBT SECURITIES
-- PREFERRED STOCK
-- COMMON STOCK
We will provide the specific terms of these securities in one or more
supplements to this Prospectus. You should read this Prospectus and any
Prospectus Supplement carefully before you invest.
Our common stock is traded over-the-counter on The Nasdaq Stock Market's
National Market under the trading symbol "NCBC." The applicable Prospectus
Supplement will contain information, where applicable, as to any other listing
(if any) on The Nasdaq Stock Market's National Market or any securities
exchange of the securities covered by the Prospectus Supplement.
In addition, up to 6,000,000 shares of common stock being registered may be
offered by certain selling shareholders. For additional information on the
methods of sale, you should refer to the section entitled "Plan of
Distribution."
The securities may be sold directly by us or, in case of the common stock,
may be sold by selling shareholders, to investors, through agents designated
from time to time or to or through underwriters or dealers. See "Plan of
Distribution." If any underwriters are involved in the sale of any securities
in respect of which this Prospectus is being delivered, the names of such
underwriters and any applicable commissions or discounts will be set forth in a
Prospectus Supplement. The net proceeds we expect to receive from such sale
also will be set forth in a Prospectus Supplement. We would not receive any of
the proceeds from the sale of common stock by selling shareholders.
This Prospectus may not be used to offer or sell any securities unless
accompanied by a Prospectus Supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved the securities to be issued under this
Prospectus or determined if this Prospectus is accurate or adequate. Any
representation to the contrary is a criminal offense. These securities are not
savings or deposit accounts or other obligations of any bank or nonbank
subsidiary of National Commerce Bancorporation, and they are not insured by the
Federal Deposit Insurance Corporation, the Bank Insurance Fund or any other
governmental agency.
The date of this Prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ABOUT THIS PROSPECTUS...................................................... 2
WHERE YOU CAN FIND MORE INFORMATION........................................ 2
INCORPORATION OF INFORMATION WE FILE WITH THE SEC.......................... 3
FORWARD-LOOKING STATEMENTS................................................. 4
THE COMPANY................................................................ 5
RATIO OF EARNINGS TO FIXED CHARGES......................................... 6
USE OF PROCEEDS............................................................ 6
REGULATORY MATTERS......................................................... 7
General................................................................... 7
Liability for Bank Subsidiaries........................................... 7
Capital Requirements...................................................... 8
FDICIA.................................................................... 8
Dividend Restrictions..................................................... 9
Deposit Insurance Assessments............................................. 10
Depositor Preference Statute.............................................. 10
Brokered Deposits......................................................... 10
Interstate Banking........................................................ 10
DESCRIPTION OF DEBT SECURITIES............................................. 11
General................................................................... 12
Limitation on Disposition of Stock of the Banks........................... 13
Consolidation, Merger or Sale of Assets................................... 14
Leveraged and Other Transactions.......................................... 14
Modification of the Indenture, Waiver of Covenants........................ 14
Global Securities......................................................... 14
Events of Default, Waivers, Etc........................................... 15
Subordination of Subordinated Debt Securities............................. 16
Concerning the Trustee.................................................... 18
DESCRIPTION OF PREFERRED STOCK............................................. 18
General................................................................... 18
Rank...................................................................... 19
Dividends................................................................. 19
Redemption................................................................ 20
Conversion Rights......................................................... 21
Rights Upon Liquidation................................................... 21
Voting Rights............................................................. 21
DESCRIPTION OF COMMON STOCK................................................ 22
General................................................................... 22
Dividends................................................................. 22
Voting Rights............................................................. 22
Other Rights.............................................................. 22
Fully Paid................................................................ 22
Listing................................................................... 22
Special Provisions of the Charter......................................... 23
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SELLING SHAREHOLDERS....................................................... 23
PLAN OF DISTRIBUTION....................................................... 24
VALIDITY OF SECURITIES..................................................... 25
EXPERTS.................................................................... 25
</TABLE>
<PAGE>
ABOUT THIS PROSPECTUS
This Prospectus is part of a Registration Statement (the "Registration
Statement") that we filed with the Securities and Exchange Commission (the
"SEC"), which registers the distribution of the securities offered under this
Prospectus. The Registration Statement, including the attached exhibits and
schedules, contains additional relevant information about our company and the
securities. The Registration Statement can be read at the SEC's web site or at
the offices mentioned under the heading "Where You Can Find More Information."
The Registration Statement utilizes a "shelf" registration process. Under
the shelf process, we may, from time to time over approximately the next two
years, sell debt securities, preferred stock and common stock, either
separately or in units, in one or more offerings up to a total dollar amount of
$300,000,000 or the equivalent of this amount in foreign currencies or foreign
currency units. Under the shelf process, selling shareholders may, from time to
time over approximately the next two years, sell up to 6,000,000 shares of
common stock in one or more offerings.
This Prospectus provides you with a general description of the securities we
may offer. Each time we sell securities, we will provide a Prospectus
Supplement that will contain specific information about the terms of that
offering. The Prospectus Supplement may also add, update or change information
contained in this Prospectus. You should read both this Prospectus and any
Prospectus Supplement, together with additional information described under the
heading "Where You Can Find More Information."
You should rely only on the information provided in this Prospectus and in
any Prospectus Supplement, including any information incorporated by reference.
We have not authorized anyone to provide you with different information. We may
only use this Prospectus to sell securities if it is accompanied by a
Prospectus Supplement. We are only offering the securities in states where
offers are permitted. You should not assume that the information in this
Prospectus or any Prospectus Supplement, is accurate at any date other than the
date indicated on the cover page of these documents.
When we refer to "our company," "we," "our" and "us" in this Prospectus
under the headings "Forward-Looking Statements," "The Company," "Use of
Proceeds" and "Ratios of Earnings to Fixed Charges," we mean National Commerce
Bancorporation and its subsidiaries. When such terms are used elsewhere in this
Prospectus, we refer only to National Commerce Bancorporation unless the
context indicates otherwise.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file with the SEC at the SEC's following public reference
facilities:
<TABLE>
<CAPTION>
<S> <C> <C>
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2511
</TABLE>
You may also obtain copies of the documents at prescribed rates by writing
to the Public Reference Section of the SEC at 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549. Please call 1-800-SEC-0330 for further
information on the operations of the public reference facilities. Our SEC
filings are also available at the offices of The Nasdaq Stock Market at 1735 K
Street, N.W., Washington, D.C. 20006.
2
<PAGE>
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The SEC allows us to "incorporate by reference" the information we file with
them, which means:
- -- incorporated documents are considered part of this Prospectus;
- -- we can disclose important information to you by referring you to those
documents; and
- -- information that we file with the SEC will automatically update and
supersede this incorporated information.
We incorporate by reference the documents listed below which were filed with
the SEC under the Securities Exchange Act of 1934 ("Exchange Act"):
(1) Our Annual Report on Form 10-K for the year ended on December 31, 1998,
filed on March 26, 1999; and
(2) The description of our Common Stock contained in the Registration
Statement on Form S-8 (File No. 33-38552), filed on January 11, 1991.
We also incorporate by reference each of the following documents that we
will file with the SEC after the date of the initial filing of the Registration
Statement and prior to the time we sell all of the Securities offered by this
Prospectus:
- -- Reports filed under Section 13(a) and (c) of the Exchange Act;
- -- Definitive proxy or information statements filed under Section 14 of the
Exchange Act in connection with any subsequent shareholders meeting; and
- -- Any reports filed under Section 15(d) of the Exchange Act.
You can obtain any of the filings incorporated by reference in this document
through us, or from the SEC through the SEC's web site or at the addresses
listed above. Documents incorporated by reference are available from us without
charge, excluding any exhibits to those documents unless the exhibit is
specifically incorporated by reference as an exhibit in this Prospectus. You
can obtain documents incorporated by reference in this Prospectus by requesting
them in writing or by telephone from us at the following address:
National Commerce Bancorporation
One Commerce Square
Memphis, Tennessee 38150
Attention: Kathy Shelton, Assistant Treasurer
Telephone: (901) 523-3434
If you request any incorporated documents from us, we will mail them to you
by first class mail, or another equally prompt means, within one business day
after we receive your request.
3
<PAGE>
FORWARD-LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 (the "Act") provides a
safe harbor for forward-looking statements made by or on our behalf. All
statements in this Prospectus that are not historical facts or that express
expectations and projections with respect to future matters are "forward-
looking statements" for the purpose of the safe harbor provided by the Act. We
caution readers that such "forward-looking statements," including, without
limitation, those relating to future business initiatives and prospects,
revenues, working capital, liquidity, capital needs, interest costs and income,
and "Year 2000" remediation efforts, wherever they occur in this document or in
other statements attributable to us, are necessarily estimates reflecting the
best judgment of our senior management. Such statements involve a number of
risks and uncertainties that could cause actual results to differ materially
from those suggested by the "forward-looking statements." "Forward-looking
statements" should, therefore, be considered in light of various important
factors, including those set forth in this document. Important factors
currently known to management that could cause actual results to differ
materially from those in "forward-looking statements" include significant
fluctuations in interest rates, inflation, economic recession, significant
changes in the federal and state legal and regulatory environment, significant
under-performance in our portfolio of outstanding loans, and competition in the
our company's markets. Other factors set forth from time to time in our filings
with the SEC should also be considered. We undertake no obligation to update or
revise "forward-looking statements" to reflect changed assumptions, the
occurrence of unanticipated events or changes to future operating results over
time.
4
<PAGE>
THE COMPANY
We are a registered bank holding company incorporated under the laws of the
State of Tennessee. We operate several major lines of business in three major
industry segments:
- -- commercial banking, which includes lending and related financial
services to large- and medium-sized corporations;
- -- retail banking, which includes sale and distribution of financial
products and services to individuals; and
- -- financial services, which include various national and regional
businesses to include transaction processing, consulting, capital
markets, treasury, trust and asset management.
We conduct our business through our wholly owned subsidiaries to which we
provide advice and counsel relating to financial and employee benefit matters,
perform certain record keeping functions relating to compliance with accounting
and regulatory requirements and provide assistance in obtaining additional
financing:
- -- National Bank of Commerce, Memphis, Tennessee, which provides a full
range of banking and trust services;
- -- NBC Bank, FSB, Knoxville, Tennessee, which, among other things, operates
full service banking facilities in Tennessee, North Carolina and Georgia
and has two equipment leasing subsidiaries;
- -- NBC Bank, FSB, Roanoake, Virginia, which operates full service banking
facilities in Roanoke, Virginia;
- -- Commerce Capital Management, Inc., Memphis, Tennessee, which is a
registered investment advisor with the SEC;
- -- TransPlatinum Service Corp., Nashville, Tennessee, which offers
financial services to the trucking and petroleum industries and bankcard
services to merchants; and
- -- U.S.I. Alliance Corp., Memphis Tennessee, which primarily leases
personal lockboxes in long-term care facilities.
In addition, through our subsidiary, National Bank of Commerce, we own four
active, non-banking subsidiaries:
- -- Commerce General Corporation, which provides a variety of data
processing services to our banking subsidiaries and other commercial
enterprises;
- -- Commerce Finance Company, which emphasizes second- and third-mortgage
loans primarily for resale;
- -- NBC Insurance Services, Inc., which provides life, property and casualty
insurance and annuities through NBC's in-store retail banking system;
and
- -- NBC Capital Markets Group, Inc., which serves the needs of institutional
and individual investors as a broker-dealer of investment products,
including stocks, bonds, municipal obligations, mutual funds and unit
investment trusts.
Our common stock, which has a par value per share of $2.00 (the "Common
Stock"), is traded on The Nasdaq Stock Market's National Market under the
symbol "NCBC." Our principal executive offices are located at One Commerce
Square, Memphis, Tennessee 38150, and our telephone number is (901) 523-3434.
5
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges for our company are set forth below
for the periods indicated, excluding or including interest on deposits as
indicated.
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest expense on deposits............... 5.18 4.73 5.32 6.37 6.44
Including interest expense on deposits............... 1.65 1.58 1.57 1.56 1.75
</TABLE>
For purposes of calculating the ratios, fixed charges consist of:
- -- interest on debt;
- -- amortization of discount on debt; and
- -- the interest portion of rental expense on operating leases.
The ratio of earnings to fixed charges is calculated as follows:
(Income before extraordinary charges and income taxes) + (fixed charges)-
(capitalized interest)
--------------------------------------------------------------------
(fixed charges)
USE OF PROCEEDS
Unless the applicable Prospectus Supplement states otherwise, the net
proceeds from the sale of the offered securities will be added to our general
funds and may be used to:
- -- finance acquisitions of assets and companies;
- -- meet our working capital requirements;
- -- reduce our short-term indebtedness;
- -- invest at the bank or bank holding company levels; and
- -- invest in or extend credit to our affiliates and other banks and
companies engaged in other financial service activities.
Until the net proceeds have been used, they may be invested in short-term
marketable securities.
We will not receive any of the proceeds from the sale of common stock that
may be offered by selling shareholders.
6
<PAGE>
REGULATORY MATTERS
The following discussion sets forth certain of the elements of the
regulatory framework applicable to bank holding companies and their
subsidiaries and provides certain specific information relevant to us and our
subsidiaries. This regulatory framework is intended primarily for the
protection of depositors and the federal deposit insurance funds and not for
the protection of securityholders. To the extent that the following information
describes statutory and regulatory provisions, it is qualified in its entirety
by reference to those provisions. A change in the statutes, regulations or
regulatory policies applicable to us or our subsidiaries may have a material
adverse effect on our business.
General. As a bank holding company, we are subject to regulation under the
Bank Holding Company Act of 1956, as amended (the "BHCA"), and to inspection,
examination and supervision by the Board of Governors of the Federal Reserve
System (the "Federal Reserve"). Under the BHCA, bank holding companies
generally may not acquire the ownership or control of more than 5% of the
voting shares or substantially all the assets of any company, including a bank,
without the Federal Reserve's prior approval. In addition, bank holding
companies generally may engage, directly or indirectly, only in banking and
such other activities as are determined by the Federal Reserve to be closely
related to banking.
Various governmental requirements, including Sections 23A and 23B of the
Federal Reserve Act, as amended, limit borrowings by us and our nonbank
subsidiaries from our affiliate banks. These requirements also limit various
other transactions between us and our nonbank subsidiaries, on the one hand,
and our affiliate banks, on the other. For example, Section 23A limits to no
more than 10% of its total capital the aggregate outstanding amount of any
bank's loans and other "covered transactions" with any particular nonbank
affiliate, and limits to no more than 20% of its total capital the aggregate
outstanding amount of any bank's covered transactions with all of its nonbank
affiliates. Section 23A also generally requires that a bank's loans to its
nonbank affiliates be secured, and Section 23B generally requires that a bank's
transactions with its nonbank affiliates be on arms' length terms.
NBC Bank, FSB, Knoxville, Tennessee ("Knoxville"), and NBC Bank, FSB,
Roanoke, Virginia ("Roanoke"), are federally chartered savings banks that are
primarily regulated by the Office of Thrift Supervision (the "OTS") and
secondarily regulated by the Federal Deposit Insurance Corporation ("FDIC") and
the Federal Reserve. The federal savings banks are subject to examination and
comprehensive regulation by the OTS. National Bank of Commerce, Memphis,
Tennessee ("NBC" and, together with Knoxville and Roanoke, the "Banks") is a
national banking association and, as such, is subject to regulation primarily
by the Office of the Comptroller of the Currency ("OCC") and, secondarily, by
the FDIC and the Federal Reserve. Our company and its subsidiaries also are
affected by the fiscal and monetary policies of the federal government and the
Federal Reserve, and by various other governmental requirements and
regulations.
Liability for Bank Subsidiaries. Under the Federal Reserve policy, we, as a
bank holding company, are expected to act as a source of financial and
managerial strength to each of our subsidiary banks and to maintain resources
adequate to support each such subsidiary bank. This support may be required at
times when we may not have the resources to provide it. In addition, Section 55
of the National Bank Act, as amended, permits the OCC to order the pro rata
assessment of shareholders of a national bank whose capital has become
impaired. If a shareholder fails within three months to pay such an assessment,
the OCC can order the sale of the shareholder's stock to cover the deficiency.
We, as the sole shareholder of our subsidiary banks, are subject to such
provisions. In the event of our bankruptcy, any commitment by us to a federal
bank regulatory agency to maintain the capital of a subsidiary bank would be
assumed by the bankruptcy trustee and entitled to priority of payment.
Any depository institution insured by the FDIC can be held liable for any
loss incurred, or reasonably expected to be incurred, by the FDIC in connection
with (i) the default of a commonly controlled FDIC-insured depository
institution or (ii) any assistance provided by the FDIC to a commonly
controlled FDIC-insured depository institution in danger of default. "Default"
is defined generally as the appointment of a conservator
7
<PAGE>
or receiver and "in danger of default" is defined generally as the existence of
certain conditions indicating that a "default" is likely to occur in the
absence of regulatory assistance. All of the Banks are FDIC-insured
institutions. Also, in the event that such a default occurred with respect to a
Bank, any capital loans from us to such Bank would be subordinate in right of
payment to payment of the bank's depositors and certain of the Bank's other
obligations.
Capital Requirements. We are subject to risk-based capital requirements and
guidelines imposed by the Federal Reserve. Our bank subsidiaries are subject to
similar capital requirements and guidelines imposed by the Federal Reserve, the
OTS, the OCC and the FDIC, as applicable. For this purpose, a depository
institution's or holding company's assets and certain specified off-balance
sheet commitments are assigned to four risk categories, each weighted
differently based on the level of credit risk that is ascribed to such assets
or commitments. In addition, risk weighted assets are adjusted for low-level
recourse and market risk equivalent assets. A depository institution's or
holding company's capital, in turn, is divided into three tiers:
- -- core ("Tier 1") capital, which includes common equity, non-cumulative
perpetual preferred stock and a limited amount of cumulative perpetual
preferred stock and related surplus (excluding auction rate issues), and
minority interests in equity accounts of consolidated subsidiaries, less
goodwill, certain identifiable intangible assets and certain other
assets;
- -- supplementary ("Tier 2") capital, which includes, among other items,
perpetual preferred stock not meeting the Tier 1 definition, mandatory
convertible securities, subordinated debt and allowances for loan and
lease losses, subject to certain limitations, less certain required
deductions; and
- -- market risk ("Tier 3") capital, which includes qualifying unsecured
subordinated debt.
We, like other bank holding companies, currently are required to maintain
Tier 1 and total capital (the sum of Tier 1, Tier 2 and Tier 3 capital) equal
to at least 4% and 8% of our total risk-weighted assets, respectively. At
December 31, 1998, we met both requirements, with Tier 1 and total capital
equal to 11.79% and 13.04% of our total risk-weighted assets, respectively.
The Federal Reserve, the FDIC, the OTS and the OCC have adopted rules to
incorporate market and interest rate risk components into their risk-based
capital standards. Amendments to the risk-based capital requirements,
incorporating market risk, became effective January 1, 1998. Under the new
market risk requirements, capital will be allocated to support the amount of
market risk related to a financial institution's ongoing trading activities.
The Federal Reserve also requires bank holding companies to maintain a
minimum "leverage ratio" (Tier 1 capital to adjusted total assets) of 3%, if
the holding company has the highest regulatory rating or has implemented the
risk-based capital measures for market risk, or 4% if the holding company does
not meet these requirements. At December 31, 1998, our leverage ratio was
8.03%. The Federal Reserve may set capital requirements higher than the
minimums noted above for holding companies if circumstances warrant it. For
example, holding companies experiencing or anticipating significant growth may
be expected to maintain capital ratios including tangible capital positions
well above the minimum levels. The Federal Reserve has not, however, imposed
any such special capital requirement on us.
Each of the Banks is subject to similar risk-based and leverage capital
requirements adopted by its applicable federal banking agency. Failure to meet
capital requirements could subject a bank to a variety of enforcement remedies,
including the termination of deposit insurance by the FDIC, and to certain
restrictions on its business, which are described below. Each of the Banks was
in compliance with the applicable minimum capital requirements as of December
31, 1998.
FDICIA. The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA"), among other things, identifies five capital categories for insured
depository institutions (well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized) and requires the
8
<PAGE>
respective federal regulatory agencies to implement systems for "prompt
corrective action" for insured depository institutions that do not meet minimum
capital requirements within such categories. The Banks are subject to such
regulation.
The FDICIA imposes progressively more restrictive constraints on operations,
management and capital distributions, depending on the category in which an
institution is classified. Failure to meet the capital guidelines could also
subject a depository institution to capital raising requirements. In the event
a depository institution's capital deteriorates to the "undercapitalized"
category or below, the FDICIA and OTS regulations prescribe an increasing
amount of regulatory intervention, including the adoption by the institution of
a capital restoration plan and a guarantee of the plan by its parent holding
company and the placement of a hold on increases in assets, number of branches
and lines of business. Our liability as the parent holding company under any
such guarantee is limited to the lesser of 5% of the depository institution's
assets at the time it became "undercapitalized" or the amount needed to comply
with the plan. Furthermore, in the event of our bankruptcy, such guarantee
would take priority over our general unsecured creditors. In addition, FDICIA
requires the various regulatory agencies to prescribe certain non-capital
standards for safety and soundness relating generally to operations and
management, asset quality and executive compensation and permits regulatory
action against a financial institution that does not meet such standards.
As of December 31, 1998, each Bank was "well capitalized," based on the
"prompt corrective action" ratios and guidelines described above. We note that
a bank's capital category is determined solely for the purpose of applying the
OTS's or the OCC's (or the FDIC's) "prompt corrective action" regulations and
that the capital category may not constitute an accurate representation of the
Banks' overall financial condition or prospects.
Dividend Restrictions. Various federal and state statutory provisions limit
the amount of dividends our affiliate banks can pay to us without regulatory
approval. Dividend payments by national banks are limited to the lesser of (i)
the level of undivided profits and (ii) absent regulatory approval, an amount
not in excess of net income for the current year combined with retained net
income for the preceding two years. The OTS rule generally provides for three
tiers of savings associations:
- -- Tier 1 associations, associations that have capital ("total capital" as
calculated under the OTS capital regulations) equal to or greater than
their capital requirements prior to, and on a pro forma basis after
giving effect to, a proposed dividend payment;
- -- Tier 2 associations, associations that have capital equal to or greater
than their minimum capital requirements, but less than their Tier 1
capital requirements prior to, and on a pro forma basis after giving
effect to, a proposed dividend payment; and
- -- Tier 3 associations, associations that do not meet their minimum capital
requirements, either before or after giving effect to a proposed
dividend payment.
Under the OTS rule, a Tier 1 association may declare dividends without OTS
approval of up to the greater of 100% of its net income during a calendar year
plus the amount that would reduce by one-half its surplus capital ratio (the
percentage by which the association's capital-to-assets ratio exceeds the ratio
of its Tier 1 capital requirements to its assets) at the beginning of the
calendar year, or 75% of its net income over the most recent four-quarter
period. A Tier 2 association is authorized without OTS approval to declare
dividends of up to 75% of net income over the most recent four-quarter period
if it satisfies its fully phased-in risk-based capital requirement, or up to
50% of such net income if it satisfies its interim (90% of fully phased-in
amount) risk-based capital requirement. Tier 3 associations are not authorized
to declare dividends without prior written OTS approval unless, in the case of
an association operating in compliance with an approved capital plan, the
dividend payments are consistent with the association's capital plan. The OTS
has supervisory authority to prohibit the payment of dividends for Tier 1 and
Tier 2 associations.
At December 31, 1998, $24.3 million of the total shareholders' equity of the
Banks was available for payment of dividends to us without approval by the
applicable regulatory authority.
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In addition, federal bank regulatory authorities have authority to prohibit
the Banks from engaging in an unsafe or unsound practice in conducting their
business. The payment of dividends, depending upon the financial condition of
the bank in question, could be deemed to constitute such an unsafe or unsound
practice. The ability of the Banks to pay dividends in the future is currently,
and could be further, influenced by bank regulatory policies and capital
guidelines. For example, under the FDICIA, each of the Banks may not make
capital distributions, including the payment of dividends, or pay any
management fees to us if it is undercapitalized or if such payment would cause
it to become undercapitalized. See "--FDICIA."
Deposit Insurance Assessments. The deposits of each of the Banks are insured
up to regulatory limits by the FDIC and are subject to the FDIC's deposit
insurance assessments to maintain the Bank Insurance Fund ("BIF") and Savings
Association Insurance Fund ("SAIF"). The FDIC has adopted regulations
establishing a permanent risk-related deposit insurance assessment system. Each
financial institution is assigned to one of three capital groups -- well
capitalized, adequately capitalized or undercapitalized -- and further assigned
to one of three subgroups within a capital group, on the basis of supervisory
evaluations by the institution's primary federal and, if applicable, other
information relevant to the institution's financial condition and the risk
posed to the applicable insurance fund. The assessment rate applicable to the
Banks in the future will depend in part upon the risk assessment classification
assigned to each Bank by the FDIC and in part on the BIF assessment schedule
adopted by the FDIC. Institutions are prohibited from disclosing the risk
classification to which they have been assigned.
The Deposit Insurance Funds Act of 1996 (the "DIFA") provides for
assessments to be imposed on insured depository institutions with respect to
deposits insured by the BIF and the SAIF. Currently, the annual insurance
premiums on bank deposits insured by the BIF and SAIF vary between $0.00 to
$0.27 per $100 of deposits. In addition, the DIFA provides for assessment to be
imposed on insured depository institutions with respect to deposits insured by
the BIF and the SAIF to pay for the cost of Financing Corporation ("FICO")
funding. The FDIC's 1998 FICO assessment rates were approximately $0.012 per
$100 annually for BIF-assessable deposits and $0.061 per $100 annually for
SAIF-assessable deposits depending upon a depository institution's
capitalization or supervisory evaluations. The Banks held approximately
$193,823,000 of SAIF-assessable deposits as of December 31, 1998. The FICO
assessments do not vary depending upon a depository institution's
capitalization or supervisory evaluations.
Federal savings banks, such as Knoxville and Roanoke, are required by OTS
regulations to pay assessments to the OTS to fund the operations of the OTS.
The general assessment is paid on a quarterly basis and is computed based on
total assets of the institution, including subsidiaries.
Depositor Preference Statute. Federal legislation has been enacted providing
that deposits and certain claims for administrative expenses and employee
compensation against an insured depository institution would be afforded a
priority over other general unsecured claims against such institution,
including federal funds and letters of credit, in the "liquidation or other
resolution" of the institution by any receiver.
Brokered Deposits. Under FDIC regulations, no FDIC-insured depository
institution may accept brokered deposits unless it (i) is well capitalized or
(ii) is adequately capitalized and receives a waiver from the FDIC. In
addition, these regulations prohibit any depository institution that is not
well capitalized from (y) paying an interest rate on deposits in excess of 75
basis points over certain prevailing market rates or (z) offering "pass
through" deposit insurance on certain employee benefit plan accounts unless it
provides certain notice to affected depositors.
Interstate Banking. Under the Riegle-Neal Interstate Banking and Branching
Efficiency Act of 1994 ("Riegle-Neal"), subject to certain concentration limits
and other requirements:
- -- bank holding companies such as our company are permitted to acquire
banks and bank holding companies located in any state;
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- -- any bank that is a subsidiary of a bank holding company is permitted to
receive deposits, renew time deposits, close loans, service loans and
receive loan payments as an agent for any other bank subsidiary of that
holding company; and
- -- banks are permitted to acquire branch offices outside their home states
by merging with out-of-state banks, purchasing branches in other states,
and establishing de novo branch offices in other states.
However, in the case of any such purchase or opening of individual branches,
the host state must have adopted legislation "opting in" to those provisions of
Riegle-Neal and, in the case of a merger with a bank located in another state,
the host state must not have adopted legislation "opting out" of that provision
of Riegle-Neal. We may use Riegle-Neal to acquire banks in additional states
and to consolidate the Banks under a smaller number of separate charters.
Our nonbanking subsidiaries are regulated and supervised by applicable bank
regulatory agencies, as well as by various other regulatory bodies. For
example, Commerce Finance Company is a consumer finance company organized under
the laws of the State of Tennessee. It is primarily regulated by the Consumer
Finance Division of the Tennessee Department of Financial Institutions. The
Federal Trade Commission has primary federal regulatory authority. Commerce
Capital Management, Inc. is registered with the SEC and is an investment
adviser pursuant to the Investment Advisers Act of 1940, as amended. NBC
Capital Markets Group, Inc. is registered as a broker-dealer with the SEC and
the National Association of Securities Dealers, Inc. It is also a member of the
Security Investor Protection Corporation. All regulatory agencies require
periodic audits and regularly scheduled reports of financial information.
DESCRIPTION OF DEBT SECURITIES
We may from time to time offer and sell debt securities, consisting of
debentures, notes and/or other unsecured evidences of indebtedness, the "Debt
Securities." The Debt Securities will be either our unsecured senior debt
securities, the "Senior Debt Securities," or our unsecured subordinated debt
securities, the "Subordinated Debt Securities." The Senior Debt Securities will
be issued under an Indenture, the "Senior Indenture," between us and The Bank
of New York, as trustee (the "Senior Trustee"). The Senior Securities will be
our direct, unsecured obligations and will rank equally with all of our
outstanding unsecured senior indebtedness. The Subordinated Debt Securities are
to be issued under a second Indenture, the "Subordinated Indenture," between us
and The Bank of New York, as trustee (the "Subordinated Trustee"). The
Subordinated Securities will be our direct, unsecured obligations and, unless
otherwise specified in the Prospectus Supplement relating to a particular
series of Subordinated Securities offered by such Prospectus Supplement, will
be subject to the subordination provisions. The Senior Indenture and the
Subordinated Indenture are together called the "Indentures" and the Senior
Trustee and the Subordinated Trustee are together called the "Trustee."
The following summary of certain provisions of the Indentures is not
complete. You should refer to the form of each Indenture, copies of which are
exhibits to the Registration Statement. For a copy of the Registration
Statement, see "Where You Can Find More Information." Section references below
are to the section in the applicable Indenture. Capitalized terms have the
meanings assigned to them in the applicable Indenture. The referenced sections
of the Indentures and the definitions of capitalized terms are incorporated by
reference.
The following section describes certain general terms and provisions of the
Debt Securities. The particular terms of the Debt Securities offered by any
prospectus supplement will be described in the applicable Prospectus
Supplement.
We are a bank holding company, and our right to participate as a shareholder
in any distribution of assets of any subsidiary upon its liquidation or
reorganization or winding-up is subject to the prior claims of creditors of any
subsidiary. Consequently, the ability of the holders of the Debt Securities to
benefit, as our creditors, from any distributions is also subject to these
prior claims.
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General. The Indentures do not limit the aggregate principal amount of Debt
Securities that we may issue. Each Indenture provides that Debt Securities of
any series may be issued under it up to the aggregate principal amount which
may be authorized from time to time by us and may be denominated in any
currency or currency unit that we designate. Neither the Indentures nor the
Debt Securities will limit or otherwise restrict the amount of other
indebtedness which we may incur or the other securities that we or any of our
subsidiaries may issue. (Section 3.01)
Debt Securities of a series may be issuable in registered form without
coupons ("Registered Securities"), in bearer form with or without coupons
attached ("Bearer Securities") or in the form of one or more global securities
in registered or bearer form (each a "Global Security"). Bearer Securities, if
any, will be offered only to non-United States persons and to offices located
outside the United States of certain United States financial institutions.
The Prospectus Supplement relating to each series of Debt Securities being
offered will specify the particular terms of those Debt Securities. The terms
may include:
- -- the title and the type of the Debt Securities;
- -- any limit on the aggregate principal amount of the Debt Securities or
aggregate initial public offering price;
- -- the priority of payment of the Debt Securities;
- -- the price or prices (which may be expressed as a percentage of the
aggregate principal amount thereof) at which the Debt Securities will be
issued;
- -- the date or dates on which the principal and premium, if any, of the
Debt Securities are payable;
- -- the interest rate or rates (which may be fixed or variable) of the Debt
Securities, if any;
- -- the interest payment date or dates, if any, or the method or methods by
which such rates may be determined, if any, the date or dates on which
payment of such interest, if any, will commence, the Interest Payment
Dates on which such interest will be payable and the Regular Record
Dates for such Interest Payment Dates;
- -- the extent to which any of the Debt Securities will be issuable in
temporary or permanent global form, or the manner in which any interest
payable on a temporary or permanent Global Debt Security will be paid;
- -- each office or agency where, subject to the terms of the applicable
Indenture, the Debt Securities may be presented for registration of
transfer or exchange;
- -- the place or places where, subject to the terms of the applicable
Indenture, the principal of (and premium, if any) and interest, if any,
on the Debt Securities will be payable;
- -- the date or dates, if any, after which the Debt Securities may be
redeemed or purchased in whole or in part, at our option or mandatorily
pursuant to any sinking, purchase or analogous fund or may be required
to be purchased or redeemed at the option of the holder, and the
redemption or repayment price or prices;
- -- the denomination or denominations in which the Debt Securities will be
issuable;
- -- the currency, currencies or units based on or related to currencies for
which the Debt Securities may be purchased and the currency, currencies
or currency units in which the principal of, premium, if any, and any
interest on such Debt Securities may be payable;
- -- any index used to determine the amount of payments of principal of,
premium, if any, and interest on the Debt Securities;
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- -- whether any of the Debt Securities are to be issuable as Bearer
Securities and/or Registered Securities, and if issuable as Bearer
Securities, any limitations on issuance of such Bearer Securities and
any provisions regarding the transfer or exchange of such Bearer
Securities (including exchange for registered Debt Securities of the
same series);
- -- the payment of any additional amounts with respect to the Debt
Securities;
- -- whether any of the Debt Securities will be issued as Original Issue
Discount Securities (as defined below);
- -- information with respect to book-entry procedures, if any;
- -- any additional covenants or Events of Default not currently set forth in
the applicable Indenture; and
- -- any other terms of the Debt Securities not inconsistent with the
provisions of the applicable Indenture.
If any of the Debt Securities are sold for one or more foreign currencies or
foreign currency units or if the principal of, premium, if any, or interest on
any series of Debt Securities is payable in one or more foreign currencies or
foreign currency units, the restrictions, elections, tax consequences, specific
terms and other information with respect to such issue of Debt Securities and
such currencies or currency units will be set forth in the applicable
Prospectus Supplement. (Section 3.01)
Debt Securities may be issued as original issue discount Debt Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) ("Original Issue Discount Securities"), to be sold at a
substantial discount below their stated principal amount. There may not be any
periodic payments of interest on Original Issue Discount Securities. In the
event of an acceleration of the maturity of any Original Issue Discount
Security, the amount payable to the holder of such Original Issue Discount
Security upon such acceleration will be determined in accordance with the
Prospectus Supplement, the terms of such security and the Indenture, but will
be an amount less than the amount payable at the maturity of the principal of
such Original Issue Discount Security. (Section 7.02) The federal income tax
considerations with respect to Original Issue Discount Securities will be
explained in the Prospectus Supplement we prepare for the Original Issue
Discount Securities.
Limitation on Disposition of Stock of the Banks. The Senior Indenture
contains a covenant by us that, so long as any of the Senior Securities are
outstanding (but subject to our rights in connection with our consolidation or
merger with or into another person or a sale of our assets), neither we nor any
Intermediate Subsidiary (as defined below) will dispose of any shares of voting
stock of the Banks (or any securities convertible into, or options, warrants or
rights to purchase shares of voting stock of the Banks), except to us or an
Intermediate Subsidiary. In addition, the covenant provides that neither we nor
any Intermediate Subsidiary will permit any Bank to issue any shares of its
voting stock (or securities convertible into, or options, warrants or rights to
subscribe for or purchase shares of its voting stock), nor will we permit any
Intermediate Subsidiary to cease to be an Intermediate Subsidiary. These
restrictions will not apply if (i) any disposition of voting stock of a Bank
(or any securities convertible into, or options, warrants or rights to purchase
shares of voting stock of the Bank) is made for fair market value, as
determined by our Board of Directors or the Board of Directors of the
Intermediate Subsidiary, and (ii) after giving effect to the transaction, we
and any one or more of our Intermediate Subsidiaries will collectively own at
least 80% of the issued and outstanding voting stock of that Bank (or any
successor to the Bank) free and clear of any security interest. The above
covenant also does not restrict the Banks from being consolidated with or
merged into another domestic banking corporation, if after the merger or
consolidation we and any one or more Intermediate Subsidiaries own at least 80%
of the voting stock of the resulting bank and no Event of Default (as defined
below), (and no event which, after notice or lapse of time or both, would
become an Event of Default), occurred and is continuing. An Intermediate
Subsidiary is defined in the Senior Indenture as a Subsidiary (i) that is
organized under the laws of any domestic jurisdiction and (ii) of which all the
shares of capital stock, and all securities convertible into, and options,
warrants and rights to purchase shares of such capital stock, are owned
directly by us, free and clear of any security interest. The above covenant
does not prevent the Banks from engaging in a sale of assets to the extent
otherwise permitted by the Senior Indenture. (Section 5.07)
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Consolidation, Merger or Sale of Assets. Each Indenture provides that we
may, without the consent of the holders of any of the Debt Securities
outstanding under the applicable Indenture, consolidate with, merge into or
transfer our assets substantially as an entirety to any person, provided that:
- -- any successor assumes our obligations on the applicable Debt Securities
and under the applicable Indenture;
- -- after giving effect to the transaction, there is no Default or Event of
Default that is continuing; and
- -- certain other conditions under the applicable Indenture are met.
(Section 10.01)
Accordingly, any such consolidation, merger or transfer of assets substantially
as an entirety, which meets the conditions described above, would not create
any Event of Default which would entitle holders of the Debt Securities, or the
Trustee on their behalf, to take any of the actions described below under "--
Events of Default, Waivers, Etc."
Leveraged And Other Transactions. The Indentures and the Debt Securities do
not contain, among other things, provisions which would afford holders of the
Debt Securities protection in the event of a highly leveraged or other
transaction involving our company which could adversely affect the holders of
Debt Securities.
Modification of the Indenture; Waiver of Covenants. Each Indenture provides
that, with the consent of the holders of not less than a majority in aggregate
principal amount of the outstanding Debt Securities of each affected series,
modifications and alterations of such Indenture may be made which affect the
rights of the holders of such Debt Securities. However, no such modification or
alteration may be made without the consent of the holder of each Debt Security
so affected which would, among other things:
- -- change the maturity of the principal of, or of any installment of
interest (or premium, if any) on, any Debt Security issued pursuant to
such Indenture;
- -- change the principal amount thereof, premium thereon, if any, or
interest thereon;
- -- change the method of calculation of interest or the currency of payment
of principal or interest (or premium, if any) thereon;
- -- reduce the minimum rate of interest thereon;
- -- impair the right to bring suit for the enforcement of any such payment
on or with respect to any such Debt Security;
- -- reduce the amount of principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity
thereof; or
- -- reduce the above-stated percentage in principal amount of outstanding
Debt Securities required to modify or alter such Indenture; or (Section
9.02)
- -- change our obligation to maintain an office or agency as required by the
applicable Indenture.
Global Securities. The Debt Securities of a series may be issued in the form
of one or more Global Securities that will be deposited with a Depositary or
its nominee identified in the applicable Prospectus Supplement. In such a case,
one or more Global Securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
outstanding Debt Securities of the series to be represented by the Global
Security or Securities. Unless and until it is exchanged in whole or in part
for Debt Securities in definitive registered form, a Global Security may not be
registered for transfer or exchange except as a whole by the Depositary for the
Global Security to a nominee for the Depositary (Section 3.05) and except in
the circumstances described in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities and certain limitations and restrictions
relating to a series of Bearer Securities in the form of one or more Global
Securities will be described in the applicable Prospectus Supplement.
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Events of Default, Waivers, Etc. An Event of Default with respect to the
Senior Debt Securities of any series, and a Default with respect to the
Subordinated Debt Securities of any series, is defined in the applicable
Indentures as:
(i) default in the payment of principal of or premium, if any, on any Debt
Security of that series when due;
(ii) default in the payment of interest on any Debt Security of that series
when due, which continues for 30 days;
(iii) default in the performance by us of any of our other covenants in the
applicable Indenture with respect to the Debt Securities of such series,
which continues for 90 days after written notice;
(iv) certain events of bankruptcy, insolvency or reorganization of our
company; and
(v) any other event that may be specified in a Prospectus Supplement with
respect to any series of Debt Securities. (Section 7.01 of the Senior
Indenture; Section 7.07 of the Subordinated Indenture)
If an Event of Default with respect to any series of Senior Debt Securities
or a Default specified in clauses (iv) and (v) of this section with respect to
the Subordinated Debt Securities occurs and is continuing, either the Trustee
or the holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series outstanding may declare the principal amount (or if
such Debt Securities 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 to be immediately due and payable. The holders
of a majority in aggregate principal amount of the Debt Securities of any
series may waive such Event of Default or Default, as applicable, resulting in
acceleration of such Debt Securities, but only if all Events of Default or
Default, as applicable, with respect to the Debt Securities of such series have
been remedied and all payments due (other than those due as a result of
acceleration) have been made. (Sections 7.02 and 7.13)
If an Event of Default with respect to the Senior Debt Securities or a
Default with respect to the Subordinated Debt Securities occurs and is
continuing, the Trustee may, in its discretion, and at the written request of
holders of not less than a majority in aggregate principal amount of the Debt
Securities of any series, and upon reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request and
subject to certain other conditions set forth in the applicable Indenture will,
proceed to protect the rights of the holders of all the Debt Securities of such
series. (Sections 7.03 and 7.07) Prior to acceleration of maturity of the Debt
Securities of any series outstanding under the applicable Indenture, the
holders of a majority in aggregate principal amount of such Debt Securities may
waive any past default under the applicable Indenture except a default in the
payment of principal of, premium, if any, or interest on the Debt Securities of
such series. (Section 7.02)
The Indentures provide that upon the occurrence of an Event of Default with
respect to the Senior Debt Securities specified in clauses (i) or (ii) of this
section or a Default with respect to the Subordinated Debt Securities specified
in clauses (i) or (ii) of this section, we will, upon demand of the Trustee,
pay to it, for the benefit of the holder of any such Debt Security, the whole
amount then due and payable on such Debt Securities for principal, premium, if
any, and interest. The Indentures further provide that if we fail to pay such
amount upon such demand, the Trustee may, among other things, institute a
judicial proceeding for the collection of the amount due. (Section 7.03)
The Indentures also provide that notwithstanding any other provision of the
applicable Indenture, the holder of any Debt Security of any series will have
the right to institute suit for the enforcement of any payment of principal of,
premium, if any, and interest on such Debt Securities when due and that such
right will not be impaired without the consent of such holder. (Section 7.08)
We are required to file annually with the applicable Trustee a written
statement as to the existence or non-existence of defaults under the Indentures
or the Debt Securities. (Section 5.05)
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Subordination of the Subordinated Debt Securities. The Subordinated Debt
Securities will be our direct, unsecured obligations and, unless otherwise
specified in the Prospectus Supplement relating to a particular series of
Subordinated Debt Securities offered by such Prospectus Supplement, will be
subject to the subordination provisions described in this section. Upon any
distribution of our assets due to any dissolution, winding up, liquidation or
reorganization, the payment of the principal of, premium, if any, and interest
on the Subordinated Debt Securities is to be subordinated in right of payment
to all Senior Indebtedness (as defined below), to the extent provided in the
Subordinated Indenture. In certain events of bankruptcy or insolvency, the
payment of the principal of and interest on the Subordinated Debt Securities
will, to the extent provided in the Subordinated Indenture, also be effectively
subordinated in right of payment to all General Obligations (as defined below).
Upon any distribution of our assets due to any dissolution, winding up,
liquidation or reorganization, the holders of Senior Indebtedness will first be
entitled to receive payment in full of all amounts due or to become due before
the holders of the Subordinated Debt Securities will be entitled to receive any
payment in respect of the Subordinated Debt Securities. If upon any such
payment or distribution of assets, after giving effect to such subordination
provisions in favor of the holders of Senior Indebtedness, (i) there remain any
amounts of cash, property or securities available for payment or distribution
in respect of the Subordinated Debt Securities ("Excess Proceeds") and (ii) if,
at such time, any creditors in respect of General Obligations have not received
payment in full of all amounts due or to become due on or in respect of such
General Obligations, then such Excess Proceeds will first be applied to pay or
provide for the payment in full of such General Obligations before any payment
or distribution may be made in respect of the Subordinated Debt Securities.
(Section 14.02)
In addition, no payment may be made on the Subordinated Debt Securities, or
in respect of any redemption, retirement, purchase or other acquisition of any
of the Subordinated Debt Securities, at any time in the event:
- -- there is a default in the payment of the principal of, premium, if any,
interest on or otherwise in respect of any Senior Indebtedness; or
- -- any event of default with respect to any Senior Indebtedness has
occurred and is continuing or would occur as a result of such payment on
the Subordinated Debt Securities or any redemption, retirement, purchase
or other acquisition of any of the Subordinated Debt Securities,
permitting the holders of such Senior Indebtedness to accelerate the
maturity thereof. (Section 14.03)
Except as described above, our obligation to make payments of the principal of,
premium, if any, or interest on the Subordinated Debt Securities will not be
affected. (Section 14.04)
By reason of the subordination in favor of the holders of Senior
Indebtedness, in the event of a distribution of assets upon any dissolution,
winding up, liquidation or reorganization, our creditors who are not holders of
Senior Indebtedness or the Subordinated Debt Securities may recover less,
proportionately, than holders of Senior Indebtedness and may recover more,
proportionately, than holders of the Subordinated Debt Securities.
Subject to payment in full of all Senior Indebtedness, the holders of
Subordinated Debt Securities will be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property or
securities of our company applicable to Senior Indebtedness. Subject to payment
in full of all General Obligations, the holders of the Subordinated Debt
Securities will be subrogated to the rights of the creditors in respect of
General Obligations to receive payments or distributions of cash, property or
securities of our company applicable to such creditors in respect of General
Obligations. (Section 14.02)
"Senior Indebtedness" for purposes of the Subordinated Indenture is the
principal of, premium, if any, and interest on:
- -- all of our indebtedness for money borrowed (other than (i) the
Subordinated Debt Securities and (ii) the Junior Subordinated
Indebtedness (as defined below)) whether outstanding on the date of
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execution of the Subordinated Indenture or created, assumed or incurred
after that date, except such indebtedness as is by its terms expressly
stated to be not superior in right of payment to the Subordinated Debt
Securities or to rank equally with the Subordinated Debt Securities; and
- -- any deferrals, renewals or extensions of any such Senior Indebtedness.
The term "indebtedness for money borrowed" as used in this paragraph includes,
without limitation, any obligation of, or any obligation guaranteed by us for
the repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, and any deferred obligation
for the payment of the purchase price of property or assets. The Subordinated
Indenture does not limit our issuance of additional Senior Indebtedness.
The Subordinated Debt Securities will rank senior in right of payment to
our Junior Subordinated Indebtedness upon any distribution of our assets due
to any dissolution, winding up, liquidation or reorganization, to the extent
provided in the instruments creating our Junior Subordinated Indebtedness.
"Junior Subordinated Indebtedness" is the prinicipal of, premium, if any, and
interest on:
- -- the Floating Rate Capital Trust Pass-through Securites due April 1,
2027, which were issued by National Commerce Capital Trust I, and which
we guarantee on a junior subordinated basis;
- -- our Floating Rate Junior Subordinated Debentures due April 1, 2027;
- -- all of our indebtedness for money borrowed whether outstanding on the
date of the execution of the Subordinated Indenture or created, assumed
or incurred after that date that is by its terms subordinated to the
Subordinated Debt Securities; and
- -- any deferrals, renewals or extensions of any of such Junior Subordinated
Indebtedness.
The term "indebtedness for money borrowed" as used in this paragraph includes,
without limitation, any obligation of, or any obligation guaranteed by us for
the repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments and any deferred obligation for
the payment of the purchase price of property or assets.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Subordinated Debt Securities offered thereby, the term
"General Obligations" means all obligations to make payment on account of
claims in respect of derivative products such as interest and foreign exchange
rate contracts, commodity contracts and similar arrangements, other than:
(i) obligations on account of Senior Indebtedness;
(ii) obligations on account of indebtedness for money borrowed ranking equal
with or subordinate to the Subordinated Debt Securities; and
(iii) obligations which by their terms are expressly stated not to be senior
in right of payment to the Subordinated Debt Securities or to rank
equally with the Subordinated Debt Securities.
However, in the event that any rule, guideline or interpretation promulgated
or issued by the Federal Reserve (or other competent regulatory agency or
authority), as from time to time in effect, establishes or specifies criteria
for the inclusion in regulatory capital of subordinated debt of a bank holding
company requiring that such subordinated debt be subordinated to obligations
to creditors in addition to those set forth above, then the term "General
Obligations" will also include such additional obligations to creditors, as
from time to time in effect pursuant to such rules, guidelines or
interpretations. For purposes of this definition, "claim" will have the
meaning assigned thereto in Section 101(4) of the Bankruptcy Code of 1978, as
amended to the date of the Subordinated Indenture.
As of December 31, 1998, the aggregate amount of Senior Indebtedness and
General Obligations of the Company was approximately $738 million.
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Unless otherwise specified in the Prospectus Supplement relating to any
series of Subordinated Debt Securities, payment of principal of the
Subordinated Debt Securities may be accelerated only in case of the bankruptcy,
insolvency or reorganization our company.
Concerning the Trustee. Our company and certain of our affiliates maintain a
banking relationship with the Trustee and its affiliates. The Trustee also acts
as the transfer agent, registrar and dividend disbursing agent
for our common stock and as trustee for (i) the Floating Rate Capital Trust
Pass-through Securities due April 1, 2027 and (ii) our Floating Rate Junior
Subordinated Debentures due April 1, 2027.
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of the general terms of the
preferred stock, without par value, the "Preferred Stock," to which any
Prospectus Supplement may relate. Certain terms of any series of the Preferred
Stock offered by any Prospectus Supplement will be described in such Prospectus
Supplement. If so indicated in the Prospectus Supplement, the terms of that
series may differ from the terms described below. The provisions of the
Preferred Stock described below are not complete. You should refer to our
Amended and Restated Charter (our "Charter" or the "Charter") and any
certificate of amendment to our Charter which will be filed with the SEC in
connection with the offering of Preferred Stock.
General. Under our Charter our Board of Directors has the authority, without
further shareholder action, to issue from time to time Preferred Stock in one
or more series and for such consideration as may be fixed from time to time by
our Board of Directors. Our Board of Directors also has the authority to fix
and determine, in the manner provided by law, the relative rights and
preferences of the shares of any series so established, such as dividend and
voting rights. Our Charter authorizes 5,000,000 shares of Preferred Stock.
Prior to the issuance of each series of Preferred Stock, our Board of Directors
will adopt resolutions creating and designating the series as a series of
Preferred Stock.
Under interpretations adopted by the Federal Reserve, if the holders of
Preferred Stock of any series become entitled to vote for the election of
directors because dividends on such series are in arrears as described under
"Voting Rights" below, such series may then be deemed a "class of voting
securities" and a holder of 25% or more of such series (or a holder of 5% or
more if it otherwise exercises a "controlling influence" over our company) may
then be subject to regulation as a bank holding company in accordance with the
BHCA. In addition, at such time as such series is deemed a class of voting
securities, any other bank holding company may be required to obtain the prior
approval of the Federal Reserve to acquire 5% or more of such series, and any
person other than a bank holding company may be required to obtain the prior
approval of the Federal Reserve to acquire 10% or more of such series.
The Preferred Stock will have the dividend, liquidation, redemption, voting
and conversion rights set forth below unless otherwise specified in the
applicable Prospectus Supplement. You should read the Prospectus Supplement
relating to the particular series of Preferred Stock offered thereby for
specific terms, including:
- -- the designation, stated value and liquidation preference of such
Preferred Stock and the number of shares offered;
- -- the initial public offering price at which such shares will be issued;
- -- the dividend rate or rates (or method of calculation), the dividend
periods, the date on which dividends will be payable and whether such
dividends will be cumulative or noncumulative and, if cumulative, the
dates from which dividends will commence to cumulate;
- -- any redemption or sinking fund provisions;
- -- any conversion provisions; and
- -- any additional voting, dividend, liquidation, redemption, sinking fund
and other rights, preferences, privileges, limitations and restrictions
of such Preferred Stock.
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No shares of Preferred Stock are currently outstanding. The Preferred Stock
will, when issued, be fully paid and nonassessable and have no preemptive
rights. Unless otherwise specified in the applicable Prospectus Supplement, the
shares of each series of Preferred Stock will upon issuance rank equally in all
respects with each other then outstanding series of Preferred Stock. Unless
otherwise specified in the applicable Prospectus Supplement, The Bank of New
York, or an affiliate, will be the transfer agent and registrar for the
Preferred Stock.
Because we are a bank holding company, our rights and the rights of holders
of our securities, including the holders of the Preferred Stock, to participate
in the assets of any of our subsidiaries upon their liquidation or
recapitalization will be subject to the prior claims of such subsidiary's
creditors and preferred stockholders, except to the extent our company may
itself be a creditor with recognized claims against such subsidiary or a holder
of preferred shares of such subsidiary.
Rank. Any series of the Preferred Stock will, with respect to dividend
rights and rights on liquidation, winding up and dissolution, rank:
- -- senior to all classes of common stock and to all equity securities
issued by us, the terms of which specifically provide that the equity
securities will rank junior to the Preferred Stock;
- -- equally with all equity securities issued by us, the terms of which
specifically provide that the equity securities will rank equally with
the Preferred Stock; and
- -- junior to all equity securities issued by us, the terms of which
specifically provide that the equity securities will rank senior to the
Preferred Stock.
Dividends. The holders of the Preferred Stock will be entitled to receive,
when, as and if declared by our Board of Directors, dividends at such rates and
on such dates as will be specified in the applicable Prospectus Supplement.
Such rates may be fixed or variable or both. If variable, the formula used for
determining the dividend rate for each dividend period will be specified in the
applicable Prospectus Supplement. Dividends will be payable to the holders of
record as they appear on our stock books on such record dates as will be fixed
by our Board of Directors. Dividends may be paid in the form of cash, the
Preferred Stock (of the same or a different series) or common stock, in each
case as specified in the applicable Prospectus Supplement.
Dividends on any series of the Preferred Stock may be cumulative or
noncumulative, as specified in the applicable Prospectus Supplement. If the
dividends on a series of the Preferred Stock are noncumulative ("Noncumulative
Preferred Stock") and our Board of Directors fails to declare a dividend
payable on a dividend payment date, then the holders of such Preferred Stock
will have no right to receive a dividend in respect of the dividend period
relating to such dividend payment date, and we will be obligated to pay the
dividend accrued for such period, whether or not dividends on such Preferred
Stock are declared or paid on any future dividend payment dates.
We will not declare or pay or set apart for payment any dividends on any
series of the Preferred Stock ranking, as to dividends, on a parity with or
junior to the outstanding Preferred Stock of any series unless (i) if such
outstanding Preferred Stock has a cumulative dividend ("Cumulative Preferred
Stock"), full cumulative dividends have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set apart for
such payment on such Preferred Stock for all dividend periods terminating on or
prior to the date of payment of any such dividends on such other series of the
Preferred Stock, or (ii) if such outstanding Preferred Stock is Noncumulative
Preferred Stock, full dividends for the then-current dividend period on such
Preferred Stock have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such
payment.
Until full dividends are paid (or declared and payment is set aside) on the
Preferred Stock ranking equal as to dividends, then:
- -- we will declare any dividends pro rata among the Preferred Stock of each
series and any Preferred Stock ranking equal to such Preferred Stock as
to dividends (i.e., the dividends we declare per share
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on each series of such Preferred Stock will bear the same relationship
to each other that the full accrued dividends per share on each such
series of the Preferred Stock (which will not, if such Preferred Stock
is Noncumulative Preferred Stock, include any accumulation in respect of
unpaid dividends for prior dividend periods) bear to each other);
- -- other than such pro rata dividends, we will not declare or pay any
dividends or declare or make any distributions upon any security ranking
junior to or equal with the Preferred Stock as to dividends or upon
liquidation (except dividends on common stock payable in common stock,
dividends or distributions paid for with securities ranking junior to
the Preferred Stock as to dividends and upon liquidation and cash in
lieu of fractional shares in connection with such dividends); and
- -- we will not redeem, purchase or otherwise acquire (or set aside money
for a sinking fund for) common stock or any other securities ranking
junior to or equal with the Preferred Stock as to dividends or upon
liquidation (except by conversion into or exchange for stock junior to
the Preferred Stock as to dividends and upon liquidation).
We will not owe any interest, or any money in lieu of interest, on any
dividend payment(s) on any series of the Preferred Stock which may be past
due.
Redemption. A series of the Preferred Stock may be redeemable, in whole or
in part, at our option, and may be subject to mandatory redemption pursuant to
a sinking fund or otherwise, in each case upon terms, at the times and at the
redemption prices specified in the applicable Prospectus Supplement. Redeemed
shares of the Preferred Stock will become authorized but unissued shares of
Preferred Stock that we may issue in the future.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such
Preferred Stock that we will redeem each year and the redemption price per
share. If shares of Preferred Stock are redeemed, we will pay all accrued and
unpaid dividends thereon (which will not, if such Preferred Stock is
Noncumulative Preferred Stock, include any accumulation in respect of unpaid
dividends for prior dividend periods) up to but excluding the date of
redemption. The redemption price may be payable in cash or other property, as
specified in the applicable Prospectus Supplement. If the redemption price for
the Preferred Stock of any series is payable only from the net proceeds of the
issuance of our capital stock, the terms of such Preferred Stock may provide
that, if no such capital stock will have been issued or to the extent the net
proceeds from any issuance are insufficient to pay in full the aggregate
redemption price then due, such Preferred Stock will automatically and
mandatorily be converted into shares of our applicable capital stock pursuant
to conversion provisions specified in the applicable Prospectus Supplement.
If fewer than all the outstanding shares of Preferred Stock of any series
are to be redeemed, our Board of Directors will determine the number of shares
to be redeemed. We will redeem the shares pro rata from the holders of record
of such shares in proportion to the number of such shares held by such holders
(with adjustments to avoid redemption of fractional shares) or by lot or by
any other method as may be determined by our Board of Directors.
Even though the terms of a series of the Cumulative Preferred Stock may
permit redemption of such Cumulative Preferred Stock in whole or in part, if
any dividends, including accumulated dividends, on that series are past due:
- -- we will not redeem any Preferred Stock of that series unless we
simultaneously redeem all outstanding Preferred Stock of that series;
and
- -- we will not purchase or otherwise acquire any Preferred Stock of that
series.
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The prohibition discussed in the prior sentence will not prohibit us from
purchasing or acquiring Preferred Stock of that series pursuant to a purchase
or exchange offer if we make the offer on the same terms to all holders of that
series.
Under current regulations, bank holding companies may exercise an option to
redeem shares of preferred stock included as Tier 1 capital, or exchange
preferred stock for debt securities, without the prior approval of the Federal
Reserve, if the bank holding company will remain well capitalized, received a
composite rating of 1 or 2 under the bank holding company ratings system and is
not the subject of any unresolved supervisory issues.
Conversion Rights. The Prospectus Supplement relating to a series of
convertible Preferred Stock will describe the terms on which shares of such
series are convertible into our Common Stock, or another series of Preferred
Stock.
Rights upon Liquidation. Unless the applicable Prospectus Supplements states
otherwise, if we voluntarily or involuntarily liquidate, dissolve or wind up
our business, the holders of the Preferred Stock will be entitled to receive
out of our assets available for distribution to shareholders, before any
distribution of assets is made to holders of our common stock or any other
class or series of shares ranking junior to such Preferred Stock upon
liquidation, liquidating distributions in the amount of the liquidation
preference of such Preferred Stock plus accrued and unpaid dividends (which
will not, if such Preferred Stock is Noncumulative Preferred Stock, include any
accumulation in respect of unpaid dividends for prior dividend periods). If we
voluntarily or involuntarily liquidate, dissolve or wind up our business, the
amounts payable with respect to the Preferred Stock of any series and any of
our other securities ranking equal as to any such distribution are not paid in
full, the holders of such Preferred Stock and of such other shares will share
ratably in any such distribution of our assets in proportion to the full
respective preferential amounts to which they are entitled. After payment of
the full amount of the liquidating distribution to which they are entitled, the
holders of the Preferred Stock of any series will not be entitled to any
further participation in any distribution of our assets.
Because we are a bank holding company, our rights, the rights of our
creditors and of our shareholders to participate in the assets of any
subsidiary, upon the subsidiary's liquidation or recapitalization, may be
subject to the prior claims of the subsidiary's creditors except to the extent
that we may ourselves be a creditor with recognized claims against the
subsidiary.
Voting Rights. Except as described in this section or in the applicable
Prospectus Supplement, or except as expressly required by applicable law, the
holders of the Preferred Stock will not be entitled to vote. If the holders of
a series of Preferred Stock are entitled to vote and the applicable Prospectus
Supplement does not state otherwise, each such share will be entitled to one
vote on matters on which holders of such series of the Preferred Stock are
entitled to vote. For any series of Preferred Stock having one vote per share,
the voting power of such series, on matters on which holders of such series and
holders of other series of Preferred Stock are entitled to vote as a single
class, will depend on the number of shares in such series, not the aggregate
stated value, liquidation preference or initial offering price of the shares of
such series of Preferred Stock.
Unless we receive the consent of the holders of an outstanding series of
Preferred Stock and the outstanding shares of all other series of Preferred
Stock which (i) rank equal with such series either as to dividends or the
distribution of assets upon liquidation, dissolution or winding up of our
business and (ii) have voting rights that are exercisable and that are similar
to those of such series, we will not:
- -- authorize, create or issue, or increase the authorized or issued amount
of, any class or series of stock ranking prior to such outstanding
Preferred Stock with respect to payment of dividends or the distribution
of assets upon liquidation, dissolution or winding up of our business;
or
- -- amend, alter or repeal, whether by merger, consolidation or otherwise,
the provisions of our Charter or of the resolutions contained in any
certificate of amendment creating such series of Preferred Stock
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so as to materially and adversely affect any right, preference, privilege
or voting power of such outstanding Preferred Stock.
This consent must be given by the holders of a majority of all such outstanding
Preferred Stock described in the preceding sentence, voting together as a
single class. We will not be required to obtain this consent with respect to
the actions listed in the second bullet point above, however, if we only (i)
increase the amount of the authorized Preferred Stock, (ii) create and issue
another series of Preferred Stock, or (iii) increase the amount of authorized
shares of any series of Preferred Stock, if such Preferred Stock in each case
ranks equal with or junior to the Preferred Shares with respect to the payment
of dividends and the distribution of assets upon liquidation, dissolution or
winding up of our business.
DESCRIPTION OF COMMON STOCK
This section describes the general terms and provisions of the shares of our
common stock, par value $2.00 per share (the "Common Stock"). The summary is
not complete and is qualified in its entirety by reference to the description
of the Common Stock incorporated by reference in this Prospectus. See
"Incorporation of Information We File with the SEC." We have also filed our
Charter and our bylaws as exhibits to the Registration Statement. You should
read our Charter and our bylaws for additional information before you buy any
Common Stock. See "Where You Can Find More Information."
General. As of March 5, 1999, our authorized Common Stock was 175,000,000
shares, of which 101,272,004 shares were issued and outstanding.
Dividends. Holders of Common Stock are entitled to receive pro rata
dividends when, as and if declared by our Board of Directors out of any funds
that we can legally use to pay dividends. We may pay dividends in cash, stock
or other property. In certain cases, holders of Common Stock may not receive
dividends until we have satisfied our obligations to any holders of outstanding
Preferred Stock. In the event we liquidate, dissolve or wind up our business,
the holders of Preferred Stock will receive an amount per share equal to the
amount fixed and determined by our Board of Directors, plus any amount equal to
all the dividends accrued on the Preferred Stock, before any distribution will
be made on the Common Stock.
Voting Rights. Each share of Common Stock is entitled to one vote on each
matter submitted to a vote of shareholders. The holders of the Common Stock
have noncumulative voting rights, which means that the holders of more than 50%
of the shares of Common Stock voting for the election of directors can elect
100% of the directors standing for election at any meeting if they choose to do
so and, in such event, the holders of the remaining shares voting for the
election of directors will not be able to elect any person or persons to our
Board of Directors.
Other Rights. The Common Stock has no conversion rights and is not
redeemable. The holders of the Common Stock do not have any preemptive rights
to subscribe for additional shares of our stock or other securities of ours
except as may be granted by our Board of Directors. There is no restriction on
our purchase of shares of Common Stock except for certain regulatory limits.
Fully Paid. The issued and outstanding shares of Common Stock are fully paid
and nonassessable (i.e., the full purchase price for the outstanding shares of
Common Stock has been paid and the holders of such shares will not be assessed
any additional monies for such shares).
Listing. The Common Stock is listed on The Nasdaq Stock Market's National
Market under the symbol "NCBC." The Bank of New York, or an affiliate thereof,
is the transfer agent, registrar and dividend disbursing agent for the Common
Stock.
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Special Provisions of the Charter. Article Seventh of the Charter provides
for a Board of Directors consisting of at least three and no more than twenty-
five directors and divided into three classes of directors serving staggered
three-year terms. The classification of directors has the effect of making it
more difficult for shareholders to change the composition of our Board of
Directors in a short period of time. At least two annual meetings of our
shareholders, instead of one, will generally be required to effect a change in
a majority of our Board of Directors.
Our Board of Directors can at any time, under the Charter and without
shareholder approval, issue one or more series of Preferred Stock. In some
cases, the issuance of Preferred Stock without shareholder approval could
discourage or make more difficult attempts to take control of our company
through a merger, tender offer, proxy contest or otherwise. Preferred Stock
with special voting rights or other features issued to persons favoring our
management could stop a takeover by preventing the person trying to take
control of our company from acquiring enough voting shares necessary to take
control.
Article Ninth of the Charter includes specific provisions with respect to
mergers and other business combinations (as defined in the Charter, a "Business
Combination"). In general, a Business Combination requires the affirmative vote
of the holders of at least two-thirds of the outstanding shares of each class
of our capital voting stock to approve the Business Combination, unless the
Business Combination is not with or does not involve:
(i) any Interested Shareholders (as defined in the Charter) or an Affiliate
(as defined in the Charter) of an Interested Shareholder if the
following conditions set forth in (ii)(a) below are met, in which event
such Business Combination will require only such affirmative vote as is
required by law and the Charter, or
(ii) an Interested Shareholder or an Affiliate of an Interested Shareholder
if the following conditions set forth in (a), (b) and (c) are met, in
which event such Business Combination will require only such affirmative
vote as is required by law and the Charter:
(a) if the Business Combination has been approved by at least two-thirds
of our entire Board of Directors at any time prior to the
consummation of the Business Combination;
(b) the aggregate amount of the cash and the fair market value as of the
date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
our outstanding capital voting stock in such Business Combination
will be at least equal to the Minimum Price Per Share (as defined in
the Charter); and
(c) the consideration to be received by holders of a particular class of
outstanding voting stock will be in cash or in the same form as the
Interested Shareholder has previously paid for shares of such class
of voting stock. If the Interested Shareholder has paid for shares
of any class of voting stock with varying forms of consideration,
the form of consideration for such class of voting stock will be
either cash or the form used to acquire the largest number of shares
of such class of voting stock previously acquired by it.
SELLING SHAREHOLDERS
The selling shareholders may be directors, executive officers or former
directors of our company. The Prospectus Supplement for any offering of the
Common Stock by selling shareholders will include the following information:
- -- the names of the selling shareholders;
- -- the number of shares held by each of the selling shareholders;
- -- the percentage of the Common Stock held by each of the selling
shareholders; and
- -- the number of shares of the Common Stock offered by each of the selling
shareholders.
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PLAN OF DISTRIBUTION
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices (which may be changed from time
to time), at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. Each Prospectus
Supplement will describe the method of distribution of the Securities offered
therein.
Our company and any selling shareholders may sell Securities directly,
through agents designated from time to time, through underwriting syndicates
led by one or more managing underwriters or through one or more underwriters
acting alone. Each Prospectus Supplement will describe the terms of the
Securities to which such Prospectus Supplement relates, the names of the
selling shareholders and the number of shares of Common Stock to be sold by
each, the name or names of any underwriters or agents with whom we or the
selling shareholders, or both, have entered into arrangements with respect to
the sale of such Securities, the public offering or purchase price of such
Securities and the net proceeds we or the selling shareholders will receive
from such sale. In addition, each Prospectus Supplement will describe any
underwriting discounts and other items constituting underwriters' compensation,
any discounts and commissions allowed or paid to dealers, if any, any
commissions allowed or paid to agents, and the securities exchange or
exchanges, if any, on which such Securities will be listed. Dealer trading may
take place in certain of the Securities, including Securities not listed on any
securities exchange.
If so indicated in the applicable Prospectus Supplement, we or the selling
shareholders, or both, will authorize underwriters or agents to solicit offers
by certain institutions to purchase Securities from us or the selling
shareholders, or both, pursuant to delayed delivery contracts providing for
payment and delivery at a future date. Institutions with which such contracts
may be made include, among others:
-- commercial and savings banks;
-- insurance companies;
-- pension funds;
-- investment companies;
-- educational and charitable institutions.
In all cases, such institutions must be approved by us or the selling
shareholders, or both. Unless otherwise set forth in the applicable Prospectus
Supplement, the obligations of any purchaser under any such contract will not
be subject to any conditions except that (i) the purchase of the Securities
will not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject and (ii) if the Securities are
also being sold to underwriters acting as principals for their own account, the
underwriters will have purchased such Securities not sold for delayed delivery.
The underwriters and such other persons will not have any responsibility in
respect of the validity or performance of such contracts.
Any selling shareholder, underwriter or agent participating in the
distribution of the Securities may be deemed to be an underwriter, as that term
is defined in the Securities Act, of the Securities so offered and sold and any
discounts or commissions received by them, and any profit realized by them on
the sale or resale of the Securities may be deemed to be underwriting discounts
and commissions under the Securities Act.
Certain of any such underwriters and agents including their associates, may
be customers of, engage in transactions with and perform services for us and
our subsidiaries in the ordinary course of business. One or more of our
affiliates may from time to time act as an agent or underwriter in connection
with the sale of the Securities to the extent permitted by applicable law. The
participation of any such affiliate in the offer and sale of the Securities
will comply with Rule 2720 of the Conduct Rules of the National Association of
Securities Dealers, Inc. regarding the offer and sale of securities of an
affiliate.
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Except as indicated in the applicable Prospectus Supplement, the Securities
are not expected to be listed on a securities exchange, except for the Common
Stock, which is listed on The Nasdaq Stock Market's National Market, and any
underwriters or dealers will not be obligated to make a market in Securities.
We cannot predict the activity or liquidity of any trading in the Securities.
We will not receive any proceeds from the sale of shares of Common Stock by
the selling shareholders. We will, however, bear certain expenses in connection
with the registration of the securities being offered under this Prospectus by
the selling shareholders, including all costs incident to the offering and sale
of the securities to the public other than any commissions and discounts of
underwriters, dealers or agents and any transfer taxes.
VALIDITY OF SECURITIES
The validity of the Securities offered hereby will be passed upon for us by
King & Spalding, 191 Peachtree Street, Atlanta, Georgia 30303, and for any
underwriters, selling agents and certain other purchasers by Cravath, Swaine &
Moore, Worldwide Plaza, 825 Eighth Avenue, New York, New York 10019.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements incorporated by reference in our Annual Report on Form 10-
K for the year ended December 31, 1998, as set forth in their report, which is
incorporated by reference in this Form S-3. Our consolidated financial
statements are incorporated by reference in reliance on Ernst & Young LLP's
report, given on their authority as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses in connection with the
issuance and distribution of the securities being registered, other than
underwriting discounts and commissions. All amounts shown (other than the SEC
registration fee) are estimates subject to future contingencies.
<TABLE>
<S> <C>
SEC Filing Fee ................................................... $123,693
Legal Fees and Expenses........................................... 100,000
Trustees' Fees and Expenses....................................... 15,000
Printing and Engraving Expenses................................... 30,000
Accounting Fees and Expense....................................... 20,000
Miscellaneous Expenses............................................ 20,000
--------
Total............................................................. $308,693
========
</TABLE>
Item 15. Indemnification of Officers and Directors
The Registrant is a Tennessee corporation. Sections 48-18-501 through 48-18-
509 of the Tennessee Business Corporation Act contain detailed provisions on
indemnification of directors and officers of a Tennessee corporation against
reasonable expenses.
The Registrant's Amended and Restated Charter (the "Charter"), provides that
no director of the Registrant shall be personally liable to the Registrant or
its shareholders for monetary damages for breach of fiduciary duty as a
director, except: (i) for any breach of the director's duty of loyalty to the
Registrant or its shareholders; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; or (iii)
for unlawful distributions under Section 48-18-304 of the Tennessee Business
Corporation Act.
The Registrant's Bylaws (the "Bylaws"), provide that the Registrant, shall
indemnify any person who is made a party to a suit by or in the right of the
Registrant to procure a judgment in its favor by reason of the fact that he,
his testator or intestate is or was a director or officer of the Registrant,
against amounts paid in settlement and reasonable expenses including attorneys'
fees actually and necessarily incurred as a result of such suit or proceeding
or any appeal therein to the extent permitted by and in the manner provided by
the laws of Tennessee. The Registrant shall indemnify any person made or
threatened to be made a party to a suit or proceeding other than by or in the
right of any company of any type or kind, domestic or foreign, which any
director or officer of the Registrant, by reason of the fact that he, his
testator or intestate, was a director or officer of the Registrant or served
such other company in any capacity, against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees actually and
necessarily incurred as a result of such suit or proceeding, or any appeal
therein, if such director or officer acted in good faith for a purpose which he
reasonably believed to be in the best interest of the Registrant and, in
criminal actions or proceedings, in addition, had no reasonable cause to
believe that this conduct was unlawful, and to the extent permitted by, and in
the manner provided by, the laws of Tennessee.
The directors and officers of the Registrant are covered by an insurance
policy indemnifying them against certain civil liabilities, including
liabilities under the federal securities laws, which might be incurred by them
in such capacity.
In connection with this offering, the Selling Shareholders have agreed to
indemnify the Registrant, its directors and officers and each such person who
controls the Registrant, against any and all liability arising from inaccurate
information provided to the Registrant by the Selling Shareholders and
contained herein.
II-1
<PAGE>
Item 16. Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
1.1 Form of Debt Securities Underwriting Agreement.
1.2 Form of Preferred Stock and Common Stock Underwriting Agreement.
3.1 Charter of National Commerce Bancorporation as amended and
restated and filed as Exhibit 3.1 to the Registrant's Form 10-Q
for the quarter ended June 30, 1998 (File No. 0-6094) and
incorporated herein by reference.
3.2 Bylaws of National Commerce Bancorporation as amended filed as
Exhibit 3.2 to the Registrant's Form 10-K for the year ended
December 31, 1995 (File No. 0-6094) and incorporated herein by
reference.
4.1 Senior Indenture between National Commerce Bancorporation and The
Bank of New York (including form of Senior Security).
4.2 Subordinated Indenture between National Commerce Bancorporation
and The Bank of New York (including form of Subordinated
Security).
4.3 Specimen Common Stock Certificate filed as Exhibit 4.1 to the
Registrant's Form 10-K for the year ended December 31, 1996 (File
No. 0-6059) and incorporated herein by reference.
5.1 Opinion of Charles A. Neale, General Counsel of National Commerce
Bancorporation.
5.2 Opinion of King & Spalding.
12.1 Statement regarding computation of ratio of earnings to fixed
charges.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Charles A. Neale (included in Exhibit 5.1).
23.3 Consent of King & Spalding (included in Exhibit 5.2).
24.1 Power of Attorney (included herein on page II-4).
25.1 Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the Senior Indenture.
25.2 Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the Subordinated Indenture.
</TABLE>
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement: (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement (notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement); and (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement. Provided, however, that (1)(i)
and (1)(ii) do not apply if the information required to be included in a
post-effective amendment by those items is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference to this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-2
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described
under Item 15 above or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the 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
against the Registrant by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(6) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Trust Indenture
Act.
II-3
<PAGE>
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 this Registration Statement on Form S-3 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 April 15, 1999.
NATIONAL COMMERCE BANCORPORATION
/s/ Thomas M. Garrott
BY:____________________________________
Thomas M. Garrott
Chairman of The Board
POWER OF ATTORNEY
We, the undersigned directors and officers of National Commerce
Bancorporation, do hereby constitute and appoint Thomas M. Garrott, Lewis E.
Holland and Charles A. Neale, and each and any of them, our true and lawful
attorneys-in-fact and agents, to do any and all acts and things in our names
and on our behalf in our capacities as directors and officers and to execute
any and all instruments for us and in our names in the capacities indicated
below, which said attorneys and agents, or any of them, may deem necessary or
advisable to enable National Commerce Bancorporation to comply with the
Securities Act of 1933 and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this registration
statement, or any registration statement for this offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933,
including specifically, but without limitation, power and authority to sign for
us or any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereto; and we do hereby
ratify and confirm all that said attorneys and agents, or any of them, shall do
or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities indicated below as of the 15th day of April, 1999.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas M. Garrott Chairman of the Board April 15, 1999
_________________________________ (Principal Executive
Thomas M. Garrott Officer)
/s/ Lewis E. Holland Vice Chairman, Treasurer, April 15, 1999
_________________________________ and Chief Financial Officer
Lewis E. Holland Director (Principal
Financial Officer)
/s/ Mark A. Wendel Accounting Officer April 15, 1999
_________________________________ (Principal Accounting
Mark A. Wendel Officer)
/s/ Phillip H. McNeill, Sr. Director April 15, 1999
_________________________________
Phillip H. McNeill, Sr.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ R. Grattan Brown, Jr. Director April 15, 1999
_________________________________
R. Grattan Brown, Jr.
/s/ J. Bradbury Reed Director April 15, 1999
_________________________________
J. Bradbury Reed
/s/ William R. Reed, Jr. Director April 15, 1999
_________________________________
William R. Reed, Jr.
/s/ Thomas C. Farnsworth, Jr. Director April 15, 1999
_________________________________
Thomas C. Farnsworth, Jr.
/s/ James E. McGehee, Jr. Director April 15, 1999
_________________________________
James E. McGehee, Jr.
/s/ G. Mark Thompson Director April 15, 1999
_________________________________
G. Mark Thompson
/s/ Bruce E. Campbell, Jr. Director April 15, 1999
_________________________________
Bruce E. Campbell, Jr.
/s/ Frank G. Barton, Jr. Director April 15, 1999
_________________________________
Frank G. Barton, Jr.
/s/ John D. Canale III Director April 15, 1999
_________________________________
John D. Canale III
/s/ R. Lee Jenkins Director April 15, 1999
_________________________________
R. Lee Jenkins
/s/ W. Neely Mallory, Jr. Director April 15, 1999
_________________________________
W. Neely Mallory, Jr.
/s/ Harry J. Phillips, Sr. Director April 15, 1999
_________________________________
Harry J. Phillips, Sr.
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
1.1 Form of Debt Securities Underwriting Agreement.
1.2 Form of Preferred Stock and Common Stock Underwriting Agreement.
3.1 Charter of National Commerce Bancorporation as amended and
restated and filed as Exhibit 3.1 to the Registrant's Form 10-Q
for the quarter ended June 30, 1998 (File No. 0-6094) and
incorporated herein by reference.
3.2 Bylaws of National Commerce Bancorporation as amended filed as
Exhibit 3.2 to the Registrant's Form 10-K for the year ended
December 31, 1995 (File No. 0-6094) and incorporated herein by
reference.
4.1 Senior Indenture between National Commerce Bancorporation and The
Bank of New York (including form of Senior Security).
4.2 Subordinated Indenture between National Commerce Bancorporation
and The Bank of New York (including form of Subordinated
Security).
4.3 Specimen Common Stock Certificate filed as Exhibit 4.1 to the
Registrant's Form 10-K for the year ended December 31, 1996 (File
No. 0-6059) and incorporated herein by reference.
5.1 Opinion of Charles A. Neale, General Counsel of National Commerce
Bancorporation.
5.2 Opinion of King & Spalding.
12.1 Statement regarding computation of ratio of earnings to fixed
charges.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Charles A. Neale (included in Exhibit 5.1).
23.3 Consent of King & Spalding (included in Exhibit 5.2).
24.1 Power of Attorney (included herein on page II-4).
25.1 Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the Senior Indenture.
25.2 Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the Subordinated Indenture.
</TABLE>
<PAGE>
EXHIBIT 1.1
National Commerce Bancorporation
Debt Securities
Underwriting Agreement
New York, New York
, 19
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
National Commerce Bancorporation, a corporation organized under the
laws of Tennessee (the "Company"), proposes to sell to the several underwriters
named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the principal amount of its
securities identified in Schedule I hereto (the "Securities"), to be issued
under an indenture (the "Indenture") dated as of [ ], 1999, between the
Company and [ ], as trustee (the "Trustee"). To the extent there
are no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
-------------------------------
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on Form S-3,
including a related basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto,
<PAGE>
2
including a Preliminary Final Prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission one of the
following: (1) after the Effective Date of such registration statement, a
final prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b), (2) prior to the Effective Date of such registration
statement, an amendment to such registration statement (including the form
of final prospectus supplement) or (3) a final prospectus in accordance
with Rules 415 and 424(b). In the case of clause (1), the Company has
included in such registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and the
Final Prospectus. As filed, such final prospectus supplement or such
amendment and form of final prospectus supplement shall contain all Rule
430A Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; on the Effective Date and on
the Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the Final Prospectus (together with
any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
-------- -------
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
(c) Each subsidiary of the Company that is a national banking
association holds a valid Certificate of Authority from the Comptroller of
the Currency of the United States of America (the "Comptroller") to do
business as a national banking
<PAGE>
3
association under the laws of the United States and is not in arrears with
respect to reports required to be filed with the Comptroller; and each
other bank subsidiary of the Company has been duly organized and is validly
existing as a bank in good standing under the laws of its jurisdiction of
organization and is not in arrears with respect to reports required to be
filed with applicable state and Federal bank regulators.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
------------------
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
---------------------
shall be made on the date and at the time specified in Schedule I hereto or at
such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several
-------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
-----------
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under Rule
424(b), the Company will cause the Final Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when the
Registration
<PAGE>
4
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Final Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 424(b)
or when any Rule 462(b) Registration Statement shall have been filed with
the Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus or
for any additional information, (5) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose and
(6) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any 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, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3) supply
any supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of each Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.
(e) The Company will cooperate with Representatives and with counsel
for the Underwriters for the qualification of the Securities for sale under
the laws of such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required for the
distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review of
the offering; provided that
<PAGE>
5
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where it
is not now so subject.
(f) The Company will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any debt securities issued or guaranteed by the Company (other than the
Securities) or publicly announce an intention to effect any such
transaction until the Business Day set forth on Schedule I hereto.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
<PAGE>
6
(b) The Company shall have requested and caused King & Spalding,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus; and the Company is duly
registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended;
(ii) each subsidiary constituting 10% or more of the assets of
the Company as of such date (each such subsidiary being hereinafter
referred to as a "Significant Subsidiary") that is a national banking
association holds a valid Certificate of Authority from the
Comptroller to do business as a national banking association under the
laws of the United States; and all the issued shares of capital stock
of each Significant Subsidiary have been duly and validly authorized
and issued, are fully paid and (except, in the case of any national
banking association, as provided in 12 U.S.C. (S) 55, as amended) non-
assessable and (except as otherwise set forth in the Prospectus) are
owned directly or indirectly by the Company, to such counsel's
knowledge free and clear of liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of matters of fact
upon certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that they believe you and they
are justified in relying upon such certificates);
(iii) each other Significant Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation; and all
of the issued shares of capital stock of each such subsidiary have
been duly and validly authorized and issued, are fully paid and
nonassessable and (except as otherwise set forth in the Prospectus)
are owned directly or indirectly by the Company, to such counsel's
knowledge free and clear of all liens, encumbrances, equities or
claims (such counsel being entitled to rely in respect of the opinion
in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they believe
that you and they are justified in relying upon such opinions and
certificates);
(iv) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; [and] the Securities conform in all
material respects to the description thereof contained in the Final
Prospectus; [the Securities are duly listed, and admitted and
authorized for trading subject to official notice of issuance [and
evidence of satisfactory distribution] on the Stock Exchange],
and, except as set forth in the Final Prospectus, no options, warrants
or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company
are outstanding;
<PAGE>
7
(v) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether considered in a
proceeding in equity or at law); and the Securities have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute legal, valid
and binding obligations of the Company entitled to the benefits of the
Indenture;
(vi) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property, of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required; [and the statements included or incorporated by reference in
the Final Prospectus under the heading[s] "Tax Matters", "Regulatory
Matters" and " "[if the Final Prospectus contains a discussion of
specific legal or regulatory matters or proceedings, add references to
appropriate sections of the Final Prospectus] fairly summarize the
matters therein described;]
(vii) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe that on the
Effective Date or at the Execution Time the Registration Statement
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Final Prospectus as
of its date and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each
case,
<PAGE>
8
other than the financial statements and other financial information
contained therein, as to which such counsel need express no opinion);
(viii) this Agreement has been duly authorized, executed and
delivered by the Company;
(ix) the Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Final Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended;
(x) no consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and such
other approvals (specified in such opinion) as have been obtained;
(xi) neither the execution and delivery of the Indenture, the
issue and sale of the Securities, nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or its subsidiaries pursuant to, (i) the charter
or by-laws of the Company or its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or its subsidiaries is a party or
bound or to which its or their property is subject and that is an
exhibit to the Registration Statement or an exhibit to the Company's
most recent Annual Report on Form 10-K or that has otherwise been
identified to us by the Company, or (iii) any statute, law, rule,
regulation, judgment, order or decree known to such counsel and
specifically applicable to the Company or its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
its subsidiaries or any of its or their properties; and
(xii) except as described in the Final Prospectus, no holders
of securities of the Company have rights to the registration of such
securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the State of Tennessee, to the extent they
deem proper and specified in such opinion, upon the opinion of Charles A.
Neale, Esq., Vice President and General Counsel of the Company and (B) as
to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to the
Final Prospectus in this paragraph (b) include any supplements thereto at
the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Indenture, the Registration
Statement, the Final Prospectus
<PAGE>
9
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused Ernst & Young, LLP to
have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, (which may refer to letters previously delivered to
one or more of the Representatives), dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
rules and regulations adopted by the Commission thereunder and that they
have performed a review of the most recent unaudited financial statements
included or incorporated by reference in the Registration Statement and
Final Prospectus, if any, in accordance with Statement on Auditing
Standards No. 71, and stating in effect, except as provided in Schedule I
hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules and any pro forma financial statements
included or incorporated by reference in the Registration Statement
and the Final Prospectus and reported on by them comply as to form in
all material respects with the applicable accounting requirements of
the Act and the
<PAGE>
10
Exchange Act and the related rules and regulations adopted by the
Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 71, of the most recent unaudited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus, as indicated in their
report, if any, incorporated by reference in the Registration
Statement and the Final Prospectus; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the stockholders,
directors and certain committees of the Company and the Subsidiaries;
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to the date
of the most recent audited financial statements included or
incorporated by reference in the Registration Statement and Final
Prospectus, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or incorporated
by reference in the Registration Statement and the Final Prospectus
do not comply as to form in all material respects with applicable
accounting requirements of the Act and with the related rules and
regulations adopted by the Commission with respect to financial
statements included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus;
(2) with respect to the period subsequent to the date of the most
recent financial statements (other than any capsule information),
audited or unaudited, included or incorporated by reference in the
Registration Statement and the Final Prospectus, there were any
changes, at a specified date not more than five days prior to the
date of the letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or decreases in the
stockholders' equity of the Company as compared with the amounts
shown on the date of the most recent financial statements (other
than any capsule information), audited or unaudited, included or
incorporated by reference in the Registration Statement and the
Final Prospectus, consolidated balance sheet included or
incorporated by reference in the Registration Statement and the
Final Prospectus, or for the period from the date of the most recent
financial statements (other than any capsule information), audited
<PAGE>
11
or unaudited, included or incorporated by reference in the
Registration Statement and the Final Prospectus, to such specified
date there were any decreases, as compared with the corresponding
period in the preceding year; in revenues or income before provision
for income taxes or in total or per share amounts of net income of
the Company and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is not deemed
necessary by the Representatives;
(3) the information included or incorporated by reference in the
Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges)
is not in conformity with the applicable disclosure requirements of
Regulation S-K;
(4) the unaudited amounts of any capsule information included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not agree with the amounts set forth in the
unaudited financial statements for the same periods or were not
determined on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements included
or incorporated by reference in the Registration Statement and the
Final Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries) set forth in the Registration Statement
and the Final Prospectus and in Exhibit 12 to the Registration Statement,
the information included or incorporated by reference in Items 1, 2, 6, and
7 of the Company's most recent Annual Report on Form 10-K, incorporated by
reference in the Registration Statement and the Final Prospectus, and the
information included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or incorporated by
reference in each of the Company's Quarterly Reports on Form 10-Q,
incorporated by reference in the Registration Statement and the Final
Prospectus, any information of an accounting or financial nature appearing
in a Current Report on Form 8-K incorporated by reference in the
Registration Statement and the Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
<PAGE>
12
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancelation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at 825 Eighth Avenue, New York, NY 10019, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
<PAGE>
13
8. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
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 for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final 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 such 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 Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
described in Schedule I to this Agreement constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of 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 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not 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
-------- -------
<PAGE>
14
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 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 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree 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 the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
- -------- -------
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other 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 total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters 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
<PAGE>
15
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 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
--------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
-------- -------
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in
------------
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal, Tennessee or New
York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any
<PAGE>
16
Underwriter or the Company or any of the officers, directors, employees, agents
or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 7 and 8
hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed as set forth in Schedule I or, if sent to the Company,
will be mailed, delivered or telefaxed to (901)523-3303 and confirmed to it at
One Commerce Square, Memphis, TN 38150, attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
--------
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
-----------
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or the State of
Tennessee.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
<PAGE>
17
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
<PAGE>
18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
NATIONAL COMMERCE BANCORPORATION
By:
---------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[REPRESENTATIVES]
By:
By:
-------------------------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: , 19 at 10:00 a.m. at
the offices of Cravath, Swaine & Moore, 825
Eighth Avenue, New York, New York
Type of Offering: [Non-delayed] [Delayed]
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s):
Modification of items to be covered by the letter from Ernst & Young, LLP
delivered pursuant to Section 6(e) at the Execution Time:
Information furnished to the Company through the Representatives for purposes of
Section 8:
Contact Information for notices to Underwriters:
<PAGE>
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
- ------------ -----------------
.................. $
______________
Total ......................... $
==============
<PAGE>
EXHIBIT 1.2
National Commerce Bancorporation
[Preferred] [Common] Stock
Underwriting Agreement
New York, New York
, 19__
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
National Commerce Bancorporation, a corporation organized under the
laws of Tennessee (the "Company"), proposes to sell to the several underwriters
named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the number of shares of [____]
Stock, [$ par value] ("[___] Stock"), of the Company set forth in Schedule I
hereto [, and the persons named in Schedule III hereto (the "Selling
Stockholders") propose to sell to the several Underwriters the number of shares
of [___] Stock set forth in Schedule III hereto] (said shares to be issued and
sold by the Company [and shares to be sold by the Selling Stockholders
collectively] being hereinafter called the "Underwritten Securities"). The
Company [and the Selling Stockholders] also propose[s] to grant to the
Underwriters an option to purchase up to the number of additional shares of
Common Stock set forth in Schedule II and Schedule III, respectively hereto to
cover over-allotments (the "Option Securities"; the Option Securities, together
with the Underwritten Securities, being hereinafter called the "Securities"). To
the extent there are no additional Underwriters listed on Schedule I other than
you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires. [In addition, to the extent that there is not
more than one Selling Stockholder named in Schedule III, the term Selling
Stockholder shall mean either the singular or plural.] The use of the neuter in
this Agreement shall include the feminine and masculine wherever appropriate.
Any reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary
<PAGE>
2
Final Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 17 hereof.
1. Representations and Warranties. [(i)] The Company represents and
-------------------------------
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on Form S-3,
including a related basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company will next file with
the Commission one of the following: (1) after the Effective Date of such
registration statement, a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus supplement)
or (3) a final prospectus in accordance with Rules 415 and 424(b). In the
case of clause (1), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As
filed, such final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus) as
the Company has advised you, prior to the Execution Time, will be included
or made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein) and on any
date on which Option Securities are purchased, if such date is not the
Closing Date (a "settlement date"), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date and any settlement date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
--------
however, that the Company makes no representations or warranties as to the
-------
information contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf
<PAGE>
3
of any Underwriter through the Representatives specifically for inclusion
in the Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) Each subsidiary of the Company that is a national banking
association holds a valid Certificate of Authority from the Comptroller of
the Currency of the United States of America (the "Comptroller") to do
business as a national banking association under the laws of the United
States and is not in arrears with respect to reports required to be filed
with the Comptroller; and each other bank subsidiary of the Company has
been duly organized and is validly existing as a bank in good standing
under the laws of its jurisdiction of organization and is not in arrears
with respect to reports required to be filed with applicable state and
Federal bank regulators.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
[(ii) Each Selling Stockholder represents and warrants to, and agrees
with, each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Securities to
be sold by such Selling Stockholder hereunder and upon sale and delivery
of, and payment for, such Securities, as provided herein, such Selling
Stockholder will convey to the Underwriters good and marketable title to
such Securities, free and clear of all liens, encumbrances, equities and
claims whatsoever.
(b) Such Selling Stockholder has not taken, directly or indirectly,
any action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(c) Certificates in negotiable form for such Selling Stockholder's
Securities have been placed in custody, for delivery pursuant to the terms
of this Agreement, under a Custody Agreement and Power of Attorney duly
authorized (if applicable) executed and delivered by such Selling
Stockholder, in the form heretofore furnished to you (the "Custody
Agreement") with ______________________________, as Custodian (the
"Custodian"); the Securities represented by the certificates so held in
custody for each Selling Stockholder are subject to the interests hereunder
of the Underwriters; the arrangements for custody and delivery of such
certificates, made by such Selling Stockholder hereunder and under the
Custody Agreement, are not subject to termination by any acts of such
Selling Stockholder, or by operation of law, whether by the death or
incapacity of such Selling Stockholder or the occurrence of any other
event; and if any such death, incapacity or any other such event shall
occur before the delivery of such Securities hereunder, certificates for
the Securities will be delivered by the Custodian in accordance with the
terms and conditions of this Agreement and the Custody Agreement as if such
death, incapacity or other event had not occurred, regardless of whether or
not the Custodian shall have received notice of such death, incapacity or
other event.
<PAGE>
4
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated herein, except such as
may have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other approvals
as have been obtained.
(e) Neither the sale of the Securities being sold by such Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated by such Selling Stockholder or the fulfillment of the terms
hereof by such Selling Stockholder will conflict with, result in a breach
or violation of, or constitute a default under any law or [the charter or
by-laws of such Selling Stockholder or] the terms of any indenture or other
agreement or instrument to which such Selling Stockholder [or any of its
subsidiaries] is a party or bound, or any judgment, order or decree
applicable to such Selling Stockholder [or any of its subsidiaries] or any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Stockholder [or any of its
subsidiaries].
(f) Such Selling Stockholder has no reason to believe that the
representations and warranties of the Company contained in this Section 1
are not true and correct, is familiar with the Registration Statement and
has no knowledge of any material fact, condition or information not
disclosed in the Prospectus or any supplement thereto which has adversely
affected or may adversely affect the business of the Company or any of its
subsidiaries; and the sale of Securities by such Selling Stockholder
pursuant hereto is not prompted by any information concerning the Company
or any of its subsidiaries which is not set forth in the Prospectus or any
supplement thereto.
(g) In respect of any statements in or omissions from the
Registration Statement or the Prospectus or any supplements thereto made in
reliance upon and in conformity with information furnished in writing to
the Company by any Selling Stockholder specifically for use in connection
with the preparation thereof, such Selling Stockholder hereby makes the
same representations and warranties to each Underwriter as the Company
makes to such Underwriter under paragraph (i)(b) of this Section.
Any certificate signed by [any officer of] any Selling Stockholder and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by such Selling Stockholder, as to matters covered thereby, to each
Underwriter.]
2. Purchase and Sale. [(a)] Subject to the terms and conditions and
------------------
in reliance upon the representations and warranties herein set forth, the
Company [agrees] [and the Selling Stockholders agree, severally and not jointly]
to sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company and the Selling Stockholders, at the
Proceeds to Company per share set forth in Schedule I, the amount of the
Underwritten Securities set forth opposite such Underwriter's name in Schedule
II hereto.
[(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company and the Selling
Stockholders
<PAGE>
5
hereby grant[s] an option to the several Underwriters to purchase, severally and
not jointly, up to the number of Option Securities set forth in Schedule I and
Schedule III, respectively at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day after the date of
the Prospectus upon written or telegraphic notice by the Representatives to the
Company and such Selling Stockholders setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the option
and the settlement date. The maximum number of Option Securities to be sold by
the Company is _______ [and the maximum aggregate number of Option Securities to
be sold by the Selling Stockholders is ______]. [The maximum number of Option
Securities which each Selling Stockholder agrees to sell is set forth in
Schedule III hereto.] In the event that the Underwriters exercise less than
their full over-allotment option, the number of Option Securities to be sold by
the Company [and each Selling Stockholder listed on Schedule III] shall be, as
nearly as practicable, in the same proportion as the maximum number of Option
Securities to be sold by the Company [and each Selling Stockholder] and the
number of Option Securities to be sold.] The number of shares of the Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total number of shares of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute discretion shall
make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
---------------------
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement among the
Representatives [, the Selling Stockholders] and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment for the Securities
being herein called the "Closing Date"). Delivery of the Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the [respective aggregate] purchase price[s] [thereof] [of
the Securities being sold by the Company and each of the Selling Stockholders]
to or upon the order of the Company [and the Selling Stockholders] by wire
transfer payable in same-day funds to an account specified by the Company [and
the Selling Stockholders]. Delivery of the Underwritten Securities and the
Option Securities shall be made through the facilities of The Depository Trust
Company unless the Representatives shall otherwise instruct.
Each Selling Stockholder will pay all applicable state transfer taxes,
if any, involved in the transfer to the several Underwriters of the Securities
to be purchased by them from such Selling Stockholder and the respective
Underwriters will pay any additional stock transfer taxes involved in further
transfers.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company [and the Selling
Stockholders] will deliver the Option Securities (at the expense of the Company)
to the Representatives, at 388 Greenwich Street, New York, New York, on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through
<PAGE>
6
the Representatives of the purchase price thereof to or upon the order of the
Company [and the Selling Stockholders] by wire transfer payable in same-day
funds to an account specified by the Company [and the Selling Stockholders]. If
settlement for the Option Securities occurs after the Closing Date, the Company
[and the Selling Stockholders] will deliver to the Representatives on the
settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
-------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. (i) The Company agrees with the several Underwriters
-----------
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under Rule
424(b), the Company will cause the Final Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when
the Registration Statement, if not effective at the Execution Time, shall
have become effective, (2) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement, or
any Rule 462(b) Registration Statement, or for any supplement to the
Final Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any 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, or if it shall
<PAGE>
7
be necessary to amend the Registration Statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (1) notify the Representatives
of such event, (2) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (3) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of each Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.
(e) The Company will cooperate with the Representatives and with
counsel for the Underwriters for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review of
the offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any other shares of [_______] Stock or any securities convertible into, or
exercisable, or exchangeable for, shares of [________] Stock; or publicly
announce an intention to effect any such transaction, until the Business
Day set forth on Schedule I hereto, provided, however, that the Company may
-------- -------
(i) issue and sell Common Stock pursuant to any stock option plan, stock
ownership plan or dividend reinvestment plan of the Company in effect at
the Execution Time; (ii) issue options to purchase Common Stock pursuant to
any stock option plan in effect at the time of Execution; and (iii) the
Company may issue Common Stock issuable upon the conversion of securities
or the exercise of warrants outstanding at the Execution Time.
<PAGE>
8
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
[(ii) Each Selling Stockholder agrees with the several Underwriters
that:
(a) Such Selling Stockholder will not, without the prior written
consent of the Representatives, offer, sell, contract to sell, pledge or
otherwise dispose of, (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Company or any affiliate of the Company or any person
in privity with the Company or any affiliate of the Company) directly or
indirectly, or file (or participate in the filing of) a registration
statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act with respect to, any
shares of capital stock of the Company or any securities convertible into
or exercisable or exchangeable for such capital stock, or publicly announce
an intention to effect any such transaction, for a period of _____________
days after the date of this Agreement, other than shares of Common Stock
disposed of as bona fide gifts approved by the Representatives.
(b) Such Selling Stockholder will not take any action designed to or
which has constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as delivery
of a prospectus relating to the Securities by an underwriter or dealer may
be required under the Act, of (i) any material change in the Company's
condition (financial or otherwise), prospects, earnings, business or
properties, (ii) any change in information in the Registration Statement or
the Prospectus relating to such Selling Stockholder or (iii) any new
material information relating to the Company or relating to any matter
stated in the Prospectus which comes to the attention of such Selling
Stockholder.]
6. Conditions to the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the Underwriters to purchase the Underwritten Securities and any
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company [and the Selling
Stockholders] contained herein as of the Execution Time, the Closing Date and
any settlement date pursuant to Section 3 hereof, to the accuracy of the
statements of the Company [and the Selling Stockholders] made in any
certificates pursuant to the provisions hereof, to the performance by the
Company [and the Selling Stockholders] of [its] [their respective] obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering
<PAGE>
9
price was determined, if such determination occurred after 3:00 PM New York
City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, will be filed in the manner and within
the time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused King & Spalding,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus; and the Company is duly
registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended;
(ii) each subsidiary constituting 10% or more of the assets of
the Company as of such date (each such subsidiary being hereinafter
referred to as a "Significant Subsidiary") that is a national banking
association holds a valid Certificate of Authority from the
Comptroller to do business as a national banking association under the
laws of the United States; [and all the issued shares of capital stock
of each Significant Subsidiary have been duly and validly authorized
and issued, are fully paid and (except, in the case of any national
banking association, as provided in 12 U.S.C. (S) 55, as amended) non-
assessable] and (except as otherwise set forth in the Prospectus) are
owned directly or indirectly by the Company, to such counsel's
knowledge free and clear of liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of matters of fact
upon certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that they believe you and they
are justified in relying upon such certificates);
(iii) each other Significant Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation; and
all of the issued shares of capital stock of each such subsidiary have
been duly and validly authorized and issued, are fully paid and
nonassessable and (except as otherwise set forth in the Prospectus)
are owned directly or indirectly by the Company, to such counsel's
knowledge free and clear of all liens, encumbrances, equities or
claims (such counsel being entitled to rely in respect of the opinion
in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they believe
that you and they are justified in relying upon such opinions and
certificates);
(iv) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Final Prospectus; the outstanding shares of Common Stock
[including the Securities being sold
<PAGE>
10
hereunder by the Selling Stockholders] have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Securities [being sold hereunder by the Company] have been duly and
validly authorized, and, when issued and delivered to and paid for by
the Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; [the Securities being sold by the Selling Stockholders
are duly qualified for inclusion in the Nasdaq National Market]; and
the Securities being sold hereunder by the Company are duly qualified
for inclusion in the Nasdaq National Market; the certificates for the
Securities are in valid and sufficient form; and the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and,
except as set forth in the Final Prospectus, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding;
(v) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required; [and the statements included or incorporated by reference in
the Final Prospectus under the heading[s] "Tax Matters", "Regulatory
Matters" and " " [if the Final Prospectus contains a discussion of
specific legal or regulatory matters or proceedings, add references to
appropriate sections of the Final Prospectus] fairly summarize the
matters therein described];
(vi) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; [and such counsel
has no reason to believe that on the Effective Date or at the
Execution Time the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus as of its date and
on the Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in
<PAGE>
11
each case, other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion);
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended;
(ix) no consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and such
other approvals (specified in such opinion) as have been obtained;
(x) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation of or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its
subsidiaries pursuant to, (i) the charter or by-laws of the Company or
its subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or its subsidiaries is a party or bound or to which its or
their property is subject and that is an exhibit to the Registration
Statement or an exhibit to the Company's most recent Annual Report,
or that has otherwise been identified to us by the Company, (iii) any
statute, law, rule, regulation, judgment, order or decree applicable
to the Company or its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its subsidiaries or
any of its or their properties; and
(xi) except as described in the Final Prospectus, no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of the State of Tennessee to the extent
they deem proper and specified in such opinion, upon the opinion of Charles
A. Neale, Esq., Vice President and General Counsel of the Company and (B)
as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to the
Final Prospectus in this paragraph (b) include any supplements thereto at
the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine &
Moore , counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the
<PAGE>
12
Securities, the Registration Statement, the Final Prospectus (together with
any supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company [and each Selling Stockholder]
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused Ernst & Young, LLP
to have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, (which may refer to letters previously delivered to
one or more of the Representatives), dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
rules and regulations adopted by the Commission thereunder and that they
have performed a review of the most recent unaudited financial statements
included or incorporated by reference in the Registration Statement and
Final Prospectus, if any, in accordance with Statement on Auditing
Standards No. 71, and stating in effect, except as provided in Schedule I
hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules and any pro forma financial statements
included or incorporated by reference in the Registration Statement
and the Final Prospectus and reported on by them comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
<PAGE>
13
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their limited
review, in accordance with standards established under Statement on Auditing
Standards No. 71, of the most recent unaudited financial statements included
or incorporated by reference in the Registration Statement and the Final
Prospectus, as indicated in their report, if any, incorporated by reference in
the Registration Statement and the Final Prospectus; carrying out certain
specified procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter; a reading
of the minutes of the meetings of the stockholders, directors and certain
committees of the Company and the Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial statements
included or incorporated by reference in the Registration Statement and Final
Prospectus, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated
by reference in the Registration Statement and the Final Prospectus do
not comply as to form in all material respects with applicable
accounting requirements of the Act and with the related rules and
regulations adopted by the Commission with respect to financial
statements included or incorporated by reference in quarterly reports
on Form 10-Q under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of
the audited financial statements included or incorporated by reference
in the Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to the date of the most
recent financial statements (other than any capsule information),
audited or unaudited, included or incorporated by reference in the
Registration Statement and the Final Prospectus, there were any
changes, at a specified date not more than five days prior to the date
of the letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or decreases in the
stockholders' equity of the Company as compared with the amounts shown
on the date of the most recent financial statements (other than any
capsule information), audited or unaudited, included or incorporated
by reference in the Registration Statement and the Final Prospectus,
consolidated balance sheet included or incorporated by reference in
the Registration Statement and the Final Prospectus, or for the period
from the date of the most recent financial statements (other than any
capsule information), audited or unaudited, included or incorporated
by reference in the Registration Statement and the Final Prospectus,
to such specified date there were any decreases, as compared with the
corresponding period in the preceding year; in revenues or income
before
<PAGE>
14
provision for income taxes or in total or per share amounts of net
income of the Company and its subsidiaries, except in all instances
for changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary
by the Representatives;
(3) the information included or incorporated by reference in the
Registration Statement and Final Prospectus in response to Regulation
S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive Compensation) and Item
503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with
the applicable disclosure requirements of Regulation S-K;
(4) the unaudited amounts of any capsule information included or
incorporated by reference in the Registration Statement and the Final
Prospectus do not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not determined on a
basis substantially consistent with that of the corresponding amounts
in the audited financial statements included or incorporated by
reference in the Registration Statement and the Final Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries) set forth in the Registration Statement
and the Final Prospectus and in Exhibit 12 to the Registration Statement,
the information included or incorporated by reference in Items 1, 2, 6, and
7 of the Company's most recent Annual Report on Form 10-K, incorporated by
reference in the Registration Statement and the Final Prospectus, and the
information included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or incorporated by
reference in each of the Company's Quarterly Reports on Form 10-Q,
incorporated by reference in the Registration Statement and the Final
Prospectus, any information of an accounting or financial nature appearing
in a Current Report on Form 8-K incorporated by reference in the
Registration Statement and the Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
<PAGE>
15
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company [and each Selling
Stockholder] shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been duly qualified for inclusion in the
Nasdaq National Market, and satisfactory evidence of such actions shall
have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
each person listed in Schedule I.
[(k) The Selling Stockholders shall have requested and caused ______,
counsel for the Selling Stockholders, to have furnished to the
Representatives their opinion dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) this Agreement [and the Custody Agreement and Power of
Attorney] has [have] been duly [authorized,] executed and delivered by
the Selling Stockholders [, the Custody Agreement is valid and binding
on the Selling Stockholders] and each Selling Stockholder has full
legal right and authority to sell, transfer and deliver in the manner
provided in this Agreement [and the Custody Agreement] the Securities
being sold by such Selling Stockholder hereunder;
(ii) the delivery by each Selling Stockholder to the several
Underwriters of certificates for the Securities being sold hereunder
by such Selling Stockholder against payment therefor as provided
herein, will pass good and marketable title to such Securities to the
several Underwriters, and assuming that the Underwriters purchased
such Securities in good faith and without notice of an adverse claim
within the meaning of the Universal Commercial Code, free and clear of
all liens, encumbrances, equities and claims whatsoever;
(iii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by any
Selling Stockholder of the transactions contemplated herein, except
such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and
<PAGE>
16
distribution of the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by any Selling
Stockholder nor the consummation of any other of the transactions
herein contemplated by any Selling Stockholder or the fulfillment of
the terms hereof by any Selling Stockholder will conflict with, result
in a breach or violation of, or constitute a default under any law or
[the charter or By-laws of the Selling Stockholder or] the terms of
any indenture or other agreement or instrument known to such counsel
and to which any Selling Stockholder [or any of its subsidiaries] is a
party or bound, or any judgment, order or decree known to such counsel
to be applicable to any Selling Stockholder [or any of its
subsidiaries] of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over any Selling
Stockholder [or any of its subsidiaries].
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Tennessee or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters, and (B) as to matters of
fact, to the extent they deem proper, on certificates of [responsible
officers of] the Selling Stockholders and public officials.]
[(l) Each Selling Stockholder shall have furnished to the
Representatives a certificate, signed by [the Chairman of the Board or the
President and the principal financial or accounting officer of] such
Selling Stockholder, dated the Closing Date, to the effect that the
signer[s] of such certificate have carefully examined the Registration
Statement, the Prospectus, any supplement to the Prospectus and this
Agreement and that the representations and warranties of such Selling
Stockholder in this Agreement are true and correct in all material respects
on and as of the Closing Date to the same effect as if made on the Closing
Date.]
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company [and each Selling Stockholder]
in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at 825 Eighth Avenue, New York, New York 10019, on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or any Selling
Stockholder to perform any agreement herein or comply with any
<PAGE>
17
provision hereof other than by reason of a default by any of the Underwriters,
the Company will reimburse the Underwriters severally through the
Representatives on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities. [If the
Company is required to make any payments to the Underwriters under this Section
7 because of any Selling Stockholder's refusal, inability or failure to satisfy
any condition to the obligations of the Underwriters set forth in Section 6, the
Selling Stockholders pro rata in proportion to the percentage of Securities to
be sold by each shall reimburse the Company on demand for all amounts so paid.]
8. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
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 for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final 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 such 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 Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
[(b) Each Selling Stockholder severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls the Company or any
Underwriter within the meaning of either the Act or the Exchange Act and each
other Selling Stockholder, if any, to the same extent as the foregoing indemnify
from the Company to each Underwriter, but only with reference to written
information furnished to the Company by or on behalf of such Selling Stockholder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Selling Stockholder may otherwise have.]
[(b)] Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act [and each Selling
Stockholder], to the same extent as the foregoing indemnity from the Company to
each Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents
<PAGE>
18
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The Company
[and each Selling Stockholder] acknowledge[s] that the statements described in
Schedule I to this Agreement constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
[(c)] Promptly after receipt by an indemnified party under this
Section 8 of 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 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not 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 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)] [(a), (b) or (c)] of this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company[, the Selling
Stockholders] and the Underwriters severally agree 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 the Company[,one or more of the Selling
Stockholders] and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company[, by the Selling Stockholders] and by the Underwriters from the offering
of the Securities; provided,
---------
<PAGE>
19
however, that in no case shall any Underwriter (except as may be provided in any
- --------
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company[, the Selling Stockholders] and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company[, of the Selling
Stockholders] and of the Underwriters 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 [and by the Selling
Stockholders] shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by [it] [each of them], and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company[, the selling Stockholders] or
the Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The Company [, the Selling Stockholders] and the Underwriters 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 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph [(d)].
[(f) The liability of each Selling Stockholder under such Selling
Stockholder's representations and warranties contained in Section 1 hereof and
under the indemnity and contribution agreements contained in this Section 8
shall be limited to an amount equal to the initial public offering price of the
Securities sold by such Selling Stockholder to the Underwriters. The Company
and the Selling Stockholders may agree, as among themselves and without limiting
the rights of the Underwriters under this Agreement, as to the respective
amounts of such liability for which they each shall be responsible.]
9. Default by an Underwriter. If any one or more Underwriters shall
--------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
-------- -------
amount of
<PAGE>
20
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter[, the Selling Stockholders] or the Company. In the event of a
default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company[, the
Selling Stockholders] and any nondefaulting Underwriter for damages occasioned
by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
------------
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or Nasdaq or trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or minimum prices shall have
been established on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal, Tennessee or New York State authorities or (iii)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers[, of each Selling Stockholder] and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter[, any Selling Stockholder] or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
--------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed as set forth in Schedule I; or, if sent to the Company,
will be mailed, delivered or telefaxed to (901) 523-3303 and confirmed to it at
One Commerce Square, Memphis, TN 38150, attention of the Legal Department; or if
sent to any Selling Stockholder, will be mailed, delivered or telefaxed and
confirmed to it at the address set forth in Schedule III hereto.
13. Successors. This Agreement will inure to the benefit of and be
-----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
<PAGE>
21
14. Applicable Law. This Agreement will be governed by and construed
---------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
--------
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
------------
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or the State of
Tennessee.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1[(i)](a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the
<PAGE>
22
Closing Date, shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement, as the case may be. Such term
shall include any Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1[(i)](a) hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
NATIONAL COMMERCE BANCORPORATION
By:
............................
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[REPRESENTATIVES]
By:
By:
...........................
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Number of Underwritten Shares to be sold by the Company:
Number of Option Securities:
Price to Public per Share (include accrued dividends, if any):
Price to Public -- total:
Underwriting Discount per Share:
Underwriting Discount -- total:
Proceeds to Company per Share:
Proceeds to Company -- total:
Stock Exchange listing:
Other provisions:
Persons to deliver letters pursuant to Section 6(j):
Closing Date, Time and Location: , 199 at 10:00 a.m. at the offices of
Cravath, Swaine & Moore, 825 Eighth Avenue, New York, New York.
Type of Offering: Non-Delayed
Date referred to in Section 5(f) after which the Company may offer or sell
securities issued or guaranteed by the Company without the consent of the
Representative(s):
Modification of items to be covered by the letter from
Ernst & Young, LLP delivered pursuant to
Section 6(e) at the Execution Time:
Information furnished to the Company through the Representatives for purposes of
Section 8:
<PAGE>
2
Contact Information for notices to Underwriters:
<PAGE>
SCHEDULE II
-----------
<TABLE>
<CAPTION>
Number of Number of
Securities to be Option Securities
Underwriters Purchased To Be Purchased
- --------------- ---------------- -------------------
<S> <C> <C>
____________ ____________
Total......... ============ ============
</TABLE>
<PAGE>
SCHEDULE III
------------
<TABLE>
<CAPTION>
Number of Maximum Number of
Underwritten Option Securities to be
Selling Stockholders: Securities to be Sold Sold
- ----------------------- ---------------------- -----------------------
<S> <C> <C>
[name]
[address, fax no.].....
[name]
[address, fax no.].....
_____________________ _______________________
Total............. ===================== =======================
</TABLE>
<PAGE>
[Form of Lock-Up Agreement] EXHIBIT A
[Letterhead of officer, director or major stockholder of
National Commerce Bancorporation]
National Commerce Bancorporation
--------------------------------
Public Offering of [ ] Stock
------------------------------------
, 19__
[Representatives]
As Representative[s] of the several Underwriters,
[c/o ]
[Address]
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between National
Commerce Bancorporation, a Tennessee corporation (the "Company"), and [each of]
you as representative[s] of a group of Underwriters named therein, relating to
an underwritten public offering of [__________] Stock, [$____par value] (the
"[________] Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of [ ], offer, sell, contract to sell, pledge or
otherwise dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing of) a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of days
after the date of this Agreement, other than shares of Common Stock disposed of
as bona fide gifts approved by [ ] and except that the
undersigned may exercise options to purchase shares of Common Stock whether such
options are held by the undersigned at the date hereof or are subsequently
acquired.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
<PAGE>
EXHIBIT 4.1
THIS INDENTURE is entered into as of April [ ], 1999,
between NATIONAL COMMERCE BANCORPORATION, a corporation organized
and existing under the laws of the State of Tennessee
(hereinafter called the "Company"), having its principal
executive office at One Commerce Square, Memphis, TN 38150, and
The Bank of New York, a New York banking corporation (hereinafter
called the "Trustee"), having its principal corporate trust
office at 101 Barclay Street, New York, New York 10286.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its
unsecured debentures, notes, bonds and other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
Definitions and Other
---------------------
Provisions of General Application
---------------------------------
SECTION 1.01. Definitions. For all purposes of this Indenture,
------------
except as otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to
<PAGE>
2
the applicable provisions hereof and shall include the terms of particular
series of Securities established as contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture. 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;
(iii) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(v) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as may be otherwise expressly provided herein or in
one or more indentures supplemental hereto, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of
the Trustee to authenticate Securities pursuant to Section 8.14.
<PAGE>
3
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the English language, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
["Authorized Officer" means the Chairman of the Board, the President,
any Vice Chairman of the Board, any Vice President, the Treasurer, the
Secretary, the Comptroller, any Assistant Comptroller, any Assistant Treasurer
or any Assistant Secretary of the Company.]
"Bearer Security" means any Security in the form established pursuant
to Section 2.02 which is payable to bearer, including, without limitation,
unless the context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on
which banking institutions in the City of Memphis, Tennessee and any Place of
Payment for the Securities are open for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonyme or its
successors.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if any time after
the execution and delivery of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
<PAGE>
4
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its [Chairman of the
Board, its President, a Vice Chairman of the Board, or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Comptroller, an Assistant
Comptroller, its Secretary or an Assistant Secretary], and delivered to the
Trustee.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 3.01 until a successor Depositary
shall have been appointed pursuant to Section 3.05, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, "Depositary" as used with respect
to the Securities of any such series shall mean the Depositary with respect to
the Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Designated Office" means the office of the Trustee located at BNY
Business Center, Corporate Trust, 100 Ashford Center North, Suite 520, Atlanta,
Georgia, 30338.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
<PAGE>
5
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated
in Section 3.01.
"Exchange Rate Officer's Certificate" with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a Certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Securities denominated in any
composite currency or Foreign Currency, and signed by the [Chairman of the
Board, a Vice Chairman of the Board, the President, any Vice President, the
Treasurer or any Assistant Treasurer] of the Company or the Exchange Rate Agent
appointed pursuant to Section 3.01 and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Global Exchange Date" has the meaning specified in Section
3.04(b)(iv).
"Global Security" means a Security issued to evidence all or a part of
a series of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in
whose name such Registered Security is registered in the Security Register and,
with respect to a Bearer Security (or any temporary Global Security) or a
coupon, means the bearer thereof.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
<PAGE>
6
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an instalment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security (or any installment of principal) becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by [the Chairman of
the Board, the President, a Vice Chairman of the Board, or a 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 contain the statements set
forth in Section 1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be reasonably acceptable to the Trustee. Each such
opinion shall contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding", when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
--------
to be redeemed, notice of such redemption has been duly
<PAGE>
7
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) such Securities in lieu of which other Securities have been
authenticated and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities 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 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities or any coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest on the Securities of
that series are payable as specified in accordance with Section 3.01.
<PAGE>
8
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the office of the Trustee, at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this instrument is at the
address set forth in the first paragraph of this instrument.
"Principal Paying Agent" means the Paying Agent, if any, designated as
such by the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price specified in such Security at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Remarketing Entity", when used with respect to the Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid
upon exercise of an option for repayment by the Holder, means the date fixed for
such repayment pursuant to this Indenture.
<PAGE>
9
"Repayment Price", when used with respect to any Security to be repaid
upon exercise of an option for repayment by the Holder, means the price at which
it is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
any officer or agent of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer or agent of the Trustee to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security" or "Securities" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture; provided,
--------
however, that, if at any time there is more than one Person acting as Trustee
- -------
under this Indenture, "Securities", with respect to any such Person, shall mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security, or
such installment of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at
least a majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having
ordinary voting power for the election of directors irrespective of whether or
not stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency.
<PAGE>
10
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939, as in force at the date as of
which this instrument was executed, and, to the extent required by law, as
amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture, means any Person who, for United States Federal income tax
purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien fiduciary of a foreign estate or trust, or a foreign
partnership, one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"vice president", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any
-------------------------------------
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, 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, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
<PAGE>
11
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except as otherwise
expressly provided in this Indenture) shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case
---------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the
<PAGE>
12
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand,
----------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders or Holders of any series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Securities of a series are issuable in whole or in part as Bearer Securities,
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 8.01) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 15.06.
(ii) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by or on behalf of any legal entity other than an individual,
such
<PAGE>
13
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved by the
Security Register.
(iv) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank or other depositary, wherever situated,
if such certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding.
(v) The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the principal amount
and serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(vi) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
<PAGE>
14
(vii) For purposes of determining the principal amount of
Outstanding Securities of any series the Holders of which are required,
requested or permitted to give any request, demand, authorization, direction,
notice, consent, waiver or take any other Act under the Indenture, each Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount determined by the Exchange Rate Agent by converting the
principal amount of such Security in the currency in which such Security is
denominated into Dollars at the Exchange Rate as of the date such Act is
delivered to the Trustee and, where it is hereby expressly required, to the
Company, by Holders of the required aggregate principal amount of the
Outstanding Securities of such series (or, if there is no such rate on such
date, such rate on the date determined as specified as contemplated in Section
3.01).
(viii) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
(ix) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 3.01 or pursuant to one or more
indentures supplemental hereto, a Holder, including a Depositary that
<PAGE>
15
is the Holder of a Global Security, may make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture to
be made, given or taken by Holders, and a Depositary that is the Holder of a
Global Security may provide its proxy or proxies to the beneficial owners of
interests in any such Global Security through such Depositary's standing
instructions and customary practices.
(xi) The Company may fix a record date for the purpose of determining
the Persons who are beneficial owners of interests in any Global Security held
by a Depositary entitled under the procedures of such Depositary to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request,
--------------------------------------
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Designated Office, Attention:_______________
with a copy to its Principal Corporate Trust Office, Attention: Corporate
Trustee Administration Department; or
(ii) the Company by any Holder or by the Trustee shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class, postage prepaid, to the Company, to the
attention of its Treasurer, addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
<PAGE>
16
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or
---------------------------
any Security provides for notice to Holders of any event:
(1) such notice shall be sufficiently given (unless otherwise herein
or in such Security expressly provided) if in writing and mailed, first
class, postage prepaid, to each Holder of Registered Securities affected by
such event, at his address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York
and, if the Securities of such series are then listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited
and such stock exchange shall so require, in London and, if the Securities
of such series are then listed on the Luxembourg Stock Exchange and such
stock exchange shall so require, in Luxembourg and, if the Securities of
such series are then listed on any other stock exchange and such stock
exchange shall so require, in any other required city outside the United
States, or, if not practicable, elsewhere in Europe on a Business Day at
least twice, the first such publication to be not earlier than the earliest
date, and not later than the latest date, prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer
<PAGE>
17
Securities as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice mailed to Holders of Registered Securities as provided
above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.07. Language of Notices, etc. Any request, demand,
-------------------------
authorization, direction, notice, consent, or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the extent
----------------------------------
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the TIA, such imposed duties or incorporated provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The Article
-----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements
-----------------------
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this
--------------------
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in
----------------------
the Securities, express or implied,
<PAGE>
18
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.13. Legal Holidays. Unless otherwise provided as
---------------
contemplated by Section 3.01 with respect to any series of Securities, in any
case where any Interest Payment Date, Stated Maturity, Repayment Date or
Redemption Date of any Security or any date on which any Defaulted Interest is
proposed to be paid shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provisions of the Securities or this Indenture)
payment of the principal of, premium, if any, or interest on any Securities need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date or on
the date on which Defaulted Interest is proposed to be paid, and, if such
payment is made, no interest shall accrue on such payment for the period from
and after any such Interest Payment Date, Stated Maturity, Repayment Date or
Redemption Date, or date on which Defaulted Interest is proposed to be paid, as
the case may be.
SECTION 1.14. Governing Law. This Indenture and the Securities shall
--------------
be construed in accordance with and governed by the laws of the State of New
York.
ARTICLE TWO
Security Forms
--------------
SECTION 2.01. Forms Generally. All Securities and any related
----------------
coupons shall have 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 the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the
<PAGE>
19
Securities of each series shall be issuable in registered form without coupons.
If so provided as contemplated by Section 3.01, the Securities of a series shall
be issuable solely in bearer form, or in both registered form and bearer form.
Unless otherwise specified as contemplated by Section 3.01, Securities in bearer
form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be
-------------------
in one of the forms approved from time to time by or pursuant to a Board
Resolution or an indenture supplemental hereto. Upon or prior to the delivery
of a Security or coupons in any such form to the Trustee for authentication, the
Company shall deliver to the Trustee the following:
(i) such indenture supplemental hereto or the Board Resolution by or
pursuant to which such form of Security or coupons has been approved,
certified by the Secretary or an Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this
Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this Indenture.
If temporary Securities of any series are issued in global form as
permitted by Section 3.04, the form thereof also shall be established as
provided in this Section 2.02.
<PAGE>
20
SECTION 2.03. Form of Trustee's Certificate of Authentication.
------------------------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ]
as Trustee,
by _______________________________
Authorized Officer/Signatory
SECTION 2.04. Global Securities. If Securities of a series are
------------------
issuable in whole or in part in global form, as specified as contemplated by
Section 3.01, then, notwithstanding clause (xii) of Section 3.01 and the
provisions of Section 3.02, such Global Security shall represent such of the
outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced or increased to
reflect exchanges or increased to reflect the issuance of additional
uncertificated securities of such series. Any endorsement of a Global Security
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.03 or
Section 3.04.
Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form.
ARTICLE THREE
The Securities
--------------
SECTION 3.01. Title and Terms. The aggregate principal amount of
----------------
Securities which may be authenticated and delivered under this Indenture is
unlimited. The
<PAGE>
21
Securities may be issued up to the aggregate principal amount of Securities from
time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(i) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate initial
public offering price of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of that series pursuant to
this Article Three or Sections 4.07, 9.06 or 14.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a percentage of the
aggregate principal amount thereof) at which the Securities will be issued;
(v) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable,
the Regular Record Date for the interest payable on any Interest Payment
Date and the basis upon which interest shall be calculated if
<PAGE>
22
other than that of a 360-day year consisting of twelve 30-day months;
(vii) the extent to which any of the Securities will be issuable in
temporary or permanent global form, and in such case, the Depositary for
such Global Security or Securities, the terms and conditions, if any, upon
which such Global Security may be exchanged in whole or in part for
definitive securities, and the manner in which any interest payable on a
temporary or permanent Global Security will be paid, whether or not
consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section 5.02,
the Securities may be presented for registration of transfer or exchange;
(ix) the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable;
(x) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(xi) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(xii) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable; and, if other than $5,000 or any integral multiple
thereof, the denominations in which Bearer Securities of the series shall
be issuable;
(xiii) the currency or currencies of denominations of the Securities of
any series, which may be in Dollars, any Foreign Currency or any composite
currency, and, if any such currency of denomination is a composite
currency, the agency or organization, if any, responsible for overseeing
such composite currency;
<PAGE>
23
(xiv) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the Exchange Rate and the Exchange Rate Agent;
(xv) if the amount of payments of principal of (and premium, if any) or
any interest on Securities of the series may be determined with reference
to an index, the method or methods by which such amounts shall be
determined;
(xvi) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both and, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if
other than the date of original issuance of the first Security of such
series of like tenor and term to be issued;
(xvii) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 5.04;
(xviii) whether any of the Securities will be issued as Original Issue
Discount Securities and the portion of the principal amount of such
Securities which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 7.02;
(xix) information with respect to book-entry procedures, if any;
(xx) any addition to or change in the Events of Default or covenants of
the Company pertaining to the Securities of the series; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board
<PAGE>
24
Resolution and set forth, or determined in the manner provided in such Officers'
Certificate or in any indenture supplemental hereto.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
Notwithstanding Section 3.01(ii) and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
SECTION 3.02. Denominations. The Securities of each series shall be
--------------
issuable in such form and denominations as shall be specified as contemplated by
Section 3.01. In the absence of any specification with respect to the
Securities of any series, the Registered Securities of each series shall be
issuable only as Securities without coupons in denominations of $1,000 and any
integral multiple thereof and the Bearer Securities of each series, if any,
shall be issuable with coupons and in denominations of $5,000 and any integral
multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities shall be executed on behalf of the Company by its [Chairman of the
Board, its President, a Vice Chairman of the Board, or one of its Vice
Presidents or its Treasurer and by its Secretary or one of its Assistant
Secretaries]. The signatures of any or all of these officers on the Securities
may be manual or facsimile. Coupons shall bear the facsimile signature of the
Company's [Chairman of the Board, its President, a Vice Chairman of the Board,
one of its Vice Presidents or its Treasurer].
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and
<PAGE>
25
delivery of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
-------- -------
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that a Bearer Security may
----------------
be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have delivered to the Trustee, or
such other Person as shall be specified in a temporary Global Security delivered
pursuant to Section 3.04, a certificate in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities in registered or permanent bearer form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
a Company Order for the authentication and delivery of such Global Securities
with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered, if in registered form, in the name
of the Depositary for such Global Security or Securities or the nominee of such
Depositary, and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in
<PAGE>
26
relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 8.01) shall be fully protected in relying upon, an Opinion
of Counsel complying with Section 1.02 and stating that:
(i) the form of such Securities and coupons, if any, has been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner of
determining such terms, have been established in conformity with the
provisions of this Indenture;
(iii) that such Securities and coupons, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable against the Company
in accordance with their terms, subject to bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and to general principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section
3.03, if all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 3.03 at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued and such documents reasonably
contemplate the issuance of all Securities of such series; provided that any
--------
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by
<PAGE>
27
the Company that as of the date of such request, the statements made in the
Officers' Certificate or other certificates delivered pursuant to Sections 1.02
and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time in the aggregate principal
amount, if any, established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon the telephonic (promptly confirmed in writing), electronic or written order
of Persons designated in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution and that such Persons are authorized to determine,
consistent with such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution, such terms and conditions of said Securities as
are specified in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution.
Each Registered Security shall be dated the date of its
authentication; and unless otherwise specified as contemplated by Section 3.01,
each Bearer Security and any temporary Global Security referred to in Section
3.04 shall be dated as of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.06, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security or portion thereof shall have been duly authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel)
<PAGE>
28
stating that such Security or portion thereof has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the preparation of
---------------------
definitive Securities of any series, the Company may execute, and upon Company
Order and the receipt of the certifications and opinions required under Sections
3.01 and 3.03, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denominations, substantially of the tenor of the
definitive Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of any series which may be issuable
as Bearer Securities, such temporary Securities may be in global form,
representing such of the Outstanding Securities of such series as shall be
specified therein.
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form, each
of which shall be exchanged in accordance with the provisions of the
following paragraphs, if temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive Securities,
the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place
of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied, if applicable, by all unmatured coupons and all matured
coupons in default appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series of authorized
denominations; provided, however, that no definitive Bearer Security shall
-------- -------
be delivered in exchange for a temporary Registered Security; and provided
--------
further
-------
<PAGE>
29
that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth
in the provisions of the third paragraph of Section 3.03. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities
of such series.
(ii) If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided in such
temporary Global Security, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the benefit
of the operator of Euroclear and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of such Securities (or to such other
accounts as they may direct). Upon receipt of written instructions (which
need not comply with Section 1.02) signed on behalf of the Company by any
Person authorized to give such instructions, the Trustee or any
Authenticating Agent shall endorse such temporary Global Security to
reflect the initial principal amount, or an increase in the principal
amount, of Outstanding Securities represented thereby. Until such initial
endorsement, such temporary Global Security shall not evidence any
obligation of the Company. Such temporary Global Security shall at any
time represent the aggregate principal amount of Outstanding Securities
theretofore endorsed thereon as provided above, subject to reduction to
reflect exchanges as described below.
(iii) Unless otherwise specified in such temporary Global Security,
and subject to the second proviso in the following paragraph, the interest
of a beneficial owner of Securities of a series in a temporary Global
Security shall be exchanged for definitive Securities (including a
definitive Global Bearer Security) of such series and of like tenor
following the Global Exchange Date (as defined below) when the account
holder instructs Euroclear or CEDEL S.A., as the case may be, to request
such exchange on his behalf and delivers to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form required by Section 3.11(i), dated
no earlier than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL
S.A., the Trustee, any Authenticating Agent appointed for such series of
Securities and each Paying
<PAGE>
30
Agent. Unless otherwise specified in such temporary Global Security, any
such exchange shall be made free of charge to the beneficial owners of such
temporary Global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like in the event that such Person does not take delivery of such
definitive Securities in person at the offices of Euroclear or CEDEL S.A.
Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary Global Security shall be delivered only outside the
United States.
(iv) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security as the "Global Exchange Date" (the "Global
Exchange Date"), the Company shall deliver to the Trustee, or, if the
Trustee appoints an Authenticating Agent pursuant to Section 8.14, to any
such Authenticating Agent, definitive Securities in aggregate principal
amount equal to the principal amount of such temporary Global Security,
executed by the Company. Unless otherwise specified as contemplated by
Section 3.01, such definitive Securities shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as may be
specified by the Company, the Trustee or any such Authenticating Agent, as
may be appropriate. On or after the Global Exchange Date, such temporary
Global Security shall be surrendered by the Common Depositary to the
Trustee or any such Authenticating Agent, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee or any such
Authenticating Agent shall authenticate and deliver, in exchange for each
portion of such temporary Global Security, an equal aggregate principal
amount of definitive Securities of the same series, of authorized
denominations and of like tenor as the portion of such temporary Global
Security to be exchanged, which, except as otherwise specified as
contemplated by Section 3.01, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof; provided, however, that,
-------- -------
unless otherwise specified in such temporary Global Security, upon such
presentation by the Common Depositary, such temporary Global Security is
accompanied by a certificate dated the Global Exchange Date or a subsequent
date and signed by Euroclear as to the portion of such temporary Global
<PAGE>
31
Security held for its account then to be exchanged and a certificate dated
the Global Exchange Date or a subsequent date and signed by CEDEL S.A., as
to the portion of such temporary Global Security held for its account then
to be exchanged, each in the form required by Section 3.11(ii); and
provided further that a definitive Bearer Security (including a definitive
----------------
global Bearer Security) shall be delivered in exchange for a portion of a
temporary Global Security only in compliance with the conditions set forth
in the provisions of the third paragraph of Section 3.03.
(v) Upon any exchange of a portion of any such temporary Global
Security, such temporary Global Security shall be endorsed by the Trustee
or any such Authenticating Agent, as the case may be, to reflect the
reduction of the principal amount evidenced thereby, whereupon its
remaining principal amount shall be reduced for all purposes by the amount
so exchanged. Until so exchanged in full, such temporary Global Security
shall in all respects be entitled to the same benefits under this Indenture
as definitive Securities of such series authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by
Section 3.01, interest payable on such temporary Global Security on an
Interest Payment Date for Securities of such series occurring prior to the
applicable Global Exchange Date shall be payable, without interest, to
Euroclear and CEDEL S.A. on or after such Interest Payment Date upon
delivery by Euroclear and CEDEL S.A. to the Trustee or the Paying Agent,
as the case may be, of a certificate or certificates in the form required
by Section 3.11(iii), for credit on or after such Interest Payment Date to
the respective accounts of the Persons who are the beneficial owners of
such temporary Global Security on such Interest Payment Date and who have
each delivered to Euroclear or CEDEL S.A., as the case may be, a
certificate in the form required by Section 3.11(iv). Any interest so
received by Euroclear and CEDEL S.A. and not paid as herein provided prior
to the Global Exchange Date shall be returned to the Trustee or Paying
Agent, as the case may be, which, upon expiration of two years after such
Interest Payment Date, shall repay such interest to the Company on Company
Request in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
----------------------------------------------------
With respect to Registered Securities, the Company shall keep or cause to be
kept a
<PAGE>
32
register (sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Registered Securities and the registration of transfers of
Registered Securities and the Company shall appoint a "Security Registrar", and
may appoint any "Co-Security Registrar" as may be appropriate, to keep the
Security Register. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such Security
Register shall be available for inspection by the Trustee at the office of the
Security Registrar. In the event that any Registered Securities issued hereunder
have The City of New York as a Place of Payment, the Company shall appoint
either a Security Registrar or Co-Security Registrar located in The City of New
York.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 5.02 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of such series of any authorized denominations and of a like aggregate principal
amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such
<PAGE>
33
exchange may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of any such
payment from the Company; provided, however, that interest represented by
-------- -------
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency of a Paying Agent, maintained pursuant to Section 5.02
for such purpose, located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related date for
payment of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for individual Securities represented
thereby, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under
<PAGE>
34
Section 3.03, the Company shall appoint a successor Depositary with respect to
the Securities of such series. If a successor Depositary for the Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 3.01(vii) shall no longer be effective with respect
to the Securities of such series and the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
(a) to the Depositary or to each Person specified by such Depositary a
new Security or Securities of the same series, of like tenor and terms and
of any authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
<PAGE>
35
(b) to such Depositary a new Global Security of like tenor and terms
and in an authorized denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
-------- -------
that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security other than in accordance with the provisions of
Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in definitive
form, such Global Securities shall be canceled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this Section
3.05 shall be registered in such names and in such authorized denominations, and
delivered to such addresses, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such
Registered Securities to the Persons in whose names such Securities are so
registered or to the Depositary. The Trustee shall deliver Bearer Securities
issued in exchange for a Global Security pursuant to this Section 3.05 to the
Depositary or to the Persons at such addresses, and in such authorized
denominations, as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing; provided, however, that no definitive Bearer
-------- -------
Security shall be delivered in exchange for a temporary Global Security other
than in accordance with the provisions of Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
<PAGE>
36
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for
transfer or exchanged, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
Neither the Company, the Security Registrar nor any Co-Security
Registrar shall be required (i) to issue, register the transfer of or exchange
any Securities of any series during a period beginning at the opening of
business 15 days before the day of selection of Securities of such series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption of Registered Securities of such series so
selected for redemption or (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer or exchange of any Securities or
portions thereof so selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities into Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange; none of the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in
<PAGE>
37
effect and the Company has delivered to the Trustee a Company Order directing
the Trustee not to make such exchanges unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Orders to the Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If
-------------------------------------------------
(i) any mutilated Security or Security with a mutilated coupon is surrendered to
the Trustee or the Security Registrar, or if the Company, the Trustee and the
Security Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and Stated Maturity and of like tenor and principal amount,
bearing a number not contemporaneously outstanding and, if applicable, with
coupons corresponding to the coupons appertaining thereto; provided, however,
-------- -------
that any new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security; provided,
--------
however, that payment of principal of (and premium, if any) and any interest on
- -------
Bearer Securities shall be payable only at an office or agency located outside
the United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
<PAGE>
38
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security with a destroyed, lost or stolen coupon, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless
-----------------------------------------------
otherwise provided as contemplated by Section 3.01, interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall unless otherwise provided in such Security be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Unless otherwise specified as contemplated by Section 3.01,
in case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency referred to in Section 3.05) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture. At the option of
the Company, payment of interest on any Registered Security may be made by check
in the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security which is payable, but is not
punctually paid or duly provided for, on
<PAGE>
39
any Interest Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by virtue
of his having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (i) or clause (ii)
below.
(i) The Company may elect to make payments of any Defaulted Interest
to the Persons in whose names any such Registered 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 Registered 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 be not more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities) are registered on
such Special Record Date and shall no longer be payable pursuant to the
following clause (ii). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of
<PAGE>
40
business at such office or agency on the related proposed date of payment
of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such proposed date for payment and Defaulted
Interest will not be payable on such proposed date for payment in respect
of the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities with respect to which there
exists such default 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 payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Subject to the limitations set forth in Section 5.02, the Holder of
any coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer Security,
----------------------
any coupons appertaining thereto and any temporary Global Security shall pass by
delivery.
Prior to due presentment for registration of transfer of any
Registered Security, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.07) interest on such Security, and
for all purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
<PAGE>
41
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating
Agent or the Security Registrar will have the responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interest of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest, and they
shall be fully protected in acting or refraining from acting on any such
information provided by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with respect
-------------
to a series of Securities, all Securities and coupons surrendered for payment,
registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered or surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture or such Securities. All cancelled Securities or coupons held
by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures and the Trustee shall deliver a certificate of such
disposition to the Company.
SECTION 3.10. Computation of Interest. Interest on the Securities of
------------------------
each series shall be computed as shall be specified as contemplated by Section
3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided
----------------------
pursuant to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification
<PAGE>
42
be given by a Person entitled to receive a Bearer Security, such
certification shall be provided substantially in the form of Exhibit A
hereto, with only such changes as shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL
S.A. in connection with the exchange of a portion of a temporary Global
Security, such certification shall be provided substantially in the form of
Exhibit B hereto, with only such changes as shall be approved by the
Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL
S.A. in connection with payment of interest with respect to a temporary
Global Security prior to the related Global Exchange Date, such
certification shall be provided substantially in the form of Exhibit C
hereto, with only such changes as shall be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a beneficial owner of
a portion of a temporary Global Security in connection with payment of
interest with respect to a temporary Global Security prior to the related
Global Exchange Date, such certification shall be provided substantially in
the form of Exhibit D hereto, with only such changes as shall be approved
by the Company.
SECTION 3.12. Judgments. The Company may provide, pursuant to
----------
Section 3.01, for the Securities of any series that, to the fullest extent
possible under applicable law and except as may otherwise be specified as
contemplated in Section 3.01, (a) the obligation, if any, of the Company to pay
the principal of (and premium, if any) and interest on the Securities of any
series and any appurtenant coupons in a Foreign Currency, composite currency or
Dollars (the "Designated Currency") as may be specified pursuant to Section 3.01
is of the essence and agrees that judgments in respect of such Securities shall
be given in the Designated Currency; (b) the obligation of the Company to make
payments in the Designated Currency of the principal of (and premium, if any)
and interest on such Securities and any appurtenant coupons shall,
notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment
<PAGE>
43
may, in accordance with normal banking procedures, purchase with the sum paid in
such other currency (after any premium and cost of exchange) in the country of
issue of the Designated Currency in the case of Foreign Currency or Dollars or
in the international banking community in the case of a composite currency on
the Business Day immediately following the day on which such Holder receives
such payment; (c) if the amount in the Designated Currency that may be so
purchased for any reason falls short of the amount originally due, the Company
shall pay such additional amounts as may be necessary to compensate for such
shortfall; and (d) any obligation of the Company not discharged by such payment
shall be due as a separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.
SECTION 3.13 CUSIP Numbers. The Company in issuing the Securities may
--------------
use "CUSIP" numbers or Euroclear or CEDEL reference numbers (if then generally
in use), and if, so, the Trustee shall use such numbers in notices of redemption
or other related material as a convenience to Holders; provided that, any such
--------
notice or other related material may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or other related material and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE FOUR
Redemption of Securities
------------------------
SECTION 4.01. Applicability of Article. Securities of any series
-------------------------
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and, except as otherwise specified as contemplated
by Section 3.01 for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice to Trustee. The election of
--------------------------------------
the Company to redeem any Securities redeemable at the option of the Company
shall be evidenced by an Officers' Certificate. In case of any redemption at
the election of the Company of the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the
<PAGE>
44
Trustee and the Security Registrar of such Redemption Date and of the principal
amount of Securities of such series to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities To Be
---------------------------------------------------
Redeemed. If less than all the Securities of any series with the same terms are
- ---------
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Security Registrar from
the Outstanding Securities of such series having such terms not previously
called for redemption, by such method as the Security Registrar shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such series of a denomination
equal to or larger than the minimum authorized denomination for Securities of
such series. Unless otherwise provided by the terms of the Securities of any
series so selected for partial redemption, the portions of the principal of
Securities of such series so selected for partial redemption shall be, in the
case of Registered Securities, equal to $1,000 or an integral multiple thereof
or, in the case of Bearer Securities, equal to $5,000 or an integral multiple
thereof, and the principal amount of any such Security which remains outstanding
shall not be less than the minimum authorized denomination for Securities of
such series.
The Security Registrar shall promptly notify the Company, the Trustee
and the Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be
---------------------
given in the manner provided in Section 1.06, not less than 30 nor more than 60
days prior
<PAGE>
45
to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series having the
same terms are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(iv) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and that interest, if
any, thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities, together in the case of
Bearer Securities with all remaining coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price;
(vi) that the redemption is from a sinking fund, if such is the case;
and
(vii) the CUSIP number or the Euroclear or the CEDEL reference number
(or any other number used by a Depositary to identify such Securities), if
any, of the Securities to be redeemed.
A notice of redemption published as contemplated by Section 1.06 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, on Company Request, by the Trustee
in the name and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the
----------------------------
opening of business on any Redemption Date, the Company shall deposit or cause
to be deposited with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 5.03) an amount of money sufficient to pay the Redemption Price of all
the Securities which are to
<PAGE>
46
be redeemed on that date; provided, however, that deposits with respect to
-------- -------
Bearer Securities shall be made with a Paying Agent or Paying Agents located
outside the United States except as otherwise provided in Section 5.02, unless
otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of
--------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Redemption Price) such Securities shall cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Securities for redemption in accordance with said notice,
such Securities shall be paid by the Company at the Redemption Price; provided,
--------
however, that installments of interest on Bearer Securities whose Stated
- -------
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
--------
however, that interest represented by coupons shall be payable only at an office
- -------
or agency located outside the United States and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of those
coupons.
<PAGE>
47
If any Security called for redemption shall not be paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which is to
----------------------------
be redeemed only in part shall be surrendered at the office or agency of the
Company in a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, containing identical terms and conditions,
of any authorized denominations as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default. The
---------------------------------------------
Trustee shall not redeem any Securities (unless all Securities then Outstanding
are to be redeemed) or commence the giving of any notice of redemption of
Securities during the continuance of any Event of Default known to the Trustee,
except that where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem such Securities, provided
funds are deposited with it for such purpose. Any moneys theretofore or
thereafter received by the Trustee shall, during the continuance of such Event
of Default, be held in trust for the benefit of the Holders and applied in the
manner set forth in Section 7.06; provided, however, that in case such Event of
-------- -------
Default shall have been waived as provided herein or otherwise cured, such
moneys shall thereafter be held and applied in accordance with the provisions of
this Article.
ARTICLE FIVE
Covenants
---------
SECTION 5.01. Payment of Principal, Premium and Interest. The
-------------------------------------------
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of, premium, if any, and
<PAGE>
48
interest on the Securities of such series in accordance with the terms of the
Securities of such series, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 3.01 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only outside the United States upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature.
SECTION 5.02. Maintenance of Office or Agency. If Securities of a
--------------------------------
series are issuable only as Registered Securities, the Company will maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change in
the location, of such office or agency. If Securities of a series may be
issuable as Bearer Securities, the Company will maintain (A) in the Borough of
Manhattan, The City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served, (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series which is
located outside the United States, an office or agency where Securities of that
series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 5.04); provided, however, that if the Securities of
-------- -------
that series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in London or Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for such series located outside the
United States an office or agency where any Registered Securities of that series
may be
<PAGE>
49
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency in respect of any
series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations, and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Principal Corporate
Trust Office of the Trustee, except that Bearer Securities of that series and
the related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Bearer Securities of that series
pursuant to Section 5.04) at the place specified for the purpose as contemplated
by Section 3.01, and the Company hereby appoints the Trustee as its agent to
receive such respective presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, payment of principal of and any premium
-------- -------
and interest denominated in Dollars (including additional amounts payable in
respect thereof) on any Bearer Security may be made at an office or agency of,
and designated by, the Company located in the United States if (but only if)
payment of the full amount of such principal, premium, interest or additional
amounts in Dollars at all offices outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or similar restrictions and the
Trustee receives an Opinion of Counsel that such payment within the United
States is legal. Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, at the option of the Holder of any Bearer
Security or related coupon, payment may be made by check in the currency
designated for such payment pursuant to the terms of such Bearer Security
presented or mailed to an address outside the United States or by transfer to an
account in such currency maintained by the payee with a bank located outside the
United States.
<PAGE>
50
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes specified above in this Section
and may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
-------- -------
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. Unless and until the
Company rescinds one or more such appointments, the Company hereby appoints:
(i) The [ ], as its Paying Agent in The City of New York with
respect to all series of Securities having a Place of Payment in The City of New
York [and (ii) the [ ] at its principal office as its Paying Agent in the [
] with respect to all series of Securities having a Place of Payment in the [
]].
SECTION 5.03. Money for Security Payments To Be Held in Trust. If
------------------------------------------------
the Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of such series and any appurtenant
coupons, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of, premium, if any, or interest on any Securities of
such series and any appurtenant coupons, 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 to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying
<PAGE>
51
Agent shall agree with the Trustee subject to the provisions of this Section,
that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of, premium,
if any, or interest on Securities of such series and any appurtenant
coupons in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal, premium or interest on the Securities of such series
or any appurtenant coupons; and
(iii) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payments by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security of any series or any appurtenant coupons and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security or any coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
-------- -------
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that,
<PAGE>
52
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 5.04. Additional Amounts. If the Securities of a series
-------------------
provide for the payment of additional amounts, the Company will pay to the
Holder of any Security of any series or any coupon appertaining thereto
additional amounts as provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (or premium, if any)
or interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in this Section to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest on the Securities of
that series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to
<PAGE>
53
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or reasonable expense incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
SECTION 5.05. Statement as to Compliance. The Company will deliver
---------------------------
to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officers' Certificate (which need not comply with Section 1.02)
(provided, however, that one of the signatories of which shall be the Company's
-------- -------
principal executive officer, principal financial officer or principal accounting
officer) stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has
been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations and complied with all conditions
and covenants under this Indenture and under the terms of the Securities
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, condition or covenant specifying each such default
known to him and the nature and status thereof, and (b) no event has
occurred and is occurring which is, or after notice or lapse of time or
both would become, an Event of Default, or if such an event has occurred
and is continuing, specifying such event known to him and the nature and
status thereof.
For purposes of this Section, compliance or default shall be
determined without regard to any period of grace or requirement of notice
provided for herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and
----------------------------------------------
Franchises. So long as any of the Securities shall be Outstanding, the Company
- -----------
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises to carry on its
business; provided, however, that nothing in this Section 5.06 shall (i) require
-------- -------
the Company to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material
<PAGE>
54
respect to the Holders, (ii) prevent any consolidation or merger of the Company,
or any conveyance or transfer of its property and assets substantially as an
entirety to any person, permitted by Article Ten, or (iii) prevent the
liquidation or dissolution of the Company after any conveyance or transfer of
its property and assets substantially as an entirety to any person permitted by
Article Ten.
SECTION 5.07. Limitation on Disposition of Stock of Banks. So long
--------------------------------------------
as any Securities shall be Outstanding, neither the Company nor any Intermediate
Subsidiary (as hereinafter defined) will (except to the Company or an
Intermediate Subsidiary) sell, assign, transfer, grant a security interest in or
otherwise dispose of any shares of, securities convertible into, or options,
warrants or rights to subscribe for or purchase shares of voting stock of
National Bank of Commerce, Memphis, Tennessee, NBC Bank, FSB, Knoxville,
Tennessee or NBC Bank, FSB, Belzoni, Mississippi (each a "Bank" and together the
"Banks"), nor will the Company or any Intermediate Subsidiary permit any Bank
to issue any shares of, or securities convertible into, or options, warrants or
rights to subscribe for or purchase shares of, voting stock of such Bank, nor
will the Company permit any Intermediate Subsidiary that owns any shares of, or
securities convertible into, or options, warrants or rights to subscribe for or
purchase shares of, voting stock of any Bank to cease to be an Intermediate
Subsidiary, except that (i) the Company or an Intermediate Subsidiary may with
respect to a Bank make any such sale, assignment, transfer, or grant of a
security interest or other disposition for fair market value on the date
thereof, as determined by the Board of Directors of the Company or such
Intermediate Subsidiary, as the case may be (which determination shall be
conclusive), and evidenced by a duly adopted resolution thereof, and (ii) in
each such case, after giving effect thereto, the Company and any one or more
Intermediate Subsidiaries will own at least 80% of the voting stock of that Bank
then issued and outstanding free and clear of any security interest.
Notwithstanding the foregoing, a Bank may be merged into or consolidated with
another banking institution organized under the laws of the United States, any
State thereof or the District of Columbia, if after giving effect to such merger
or consolidation the Company and any one or more Intermediate Subsidiaries own
at least 80% of the voting stock of such other banking institution and
immediately after giving effect thereto and treating any such resulting bank
thereafter as such Bank for purposes of this Indenture, no Event of Default, and
no event which, after notice or lapse
<PAGE>
55
of time or both, would become an Event of Default, shall have happened and be
continuing. For purposes of this Section, an "Intermediate Subsidiary" means a
Subsidiary (i) that is organized under the laws of the United States, any State
thereof or the District of Columbia, and (ii) of which all the shares of each
class of capital stock issued and outstanding, and all securities convertible
into, and options, warrants and rights to subscribe for or purchase shares of,
such capital stock, are owned directly by the Company, free and clear of any
security interest.
The provisions of this Section 5.07 shall not prohibit the Company
from consolidating with or merging into any other Person or from conveying,
transferring or leasing the Company's properties and assets substantially as an
entirety to any Person as otherwise permitted pursuant to Article Ten.
ARTICLE SIX
Holders' Lists and Reports by Trustee and Company
-------------------------------------------------
SECTION 6.01. Company To Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee (i)
- --------
semiannually, not more than 10 days after each March 1 and September 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
March 1 and September 1, and (ii) at such other times as the Trustee may request
in writing, within 30 days after 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 requested to be furnished; provided, however, that if and so
-------- -------
long as the Trustee is the Security Registrar for Securities of a series, no
such list need be furnished with respect to such series of Securities.
SECTION 6.02. Preservation of Information; Communications to Holders.
------------------------------------------------------
(i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy
<PAGE>
56
any list furnished to it as provided in Section 6.01 upon receipt of a new list
so furnished.
(ii) If three or more Holders of 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
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 Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such 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:
(a) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 6.02(i); or
(b) inform such applicants as to the approximate number of Holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 6.02(i), and as to the approximate cost
of mailing to such Holders 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 Holder of a Security of such series or all Holders of
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
6.02(i), 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 Commission, 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 Securities of such series or all Securities, as the
case may be, or would be in violation of applicable law. Such written statement
shall
<PAGE>
57
specify the basis of such opinion. If the Commission, 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, the 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 Holders of Securities 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.
(iii) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 6.02(ii), 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 Section 6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May 15
-------------------
of each year commencing with the year 2000, the Trustee shall mail to each
Holder reports concerning the Trustee and its action under the Indenture as may
be required pursuant to Section 313(a) of the Trust Indenture Act if and to the
extent and in the manner provided pursuant thereto. The Trustee shall also
comply with the other provisions of Section 313 of the Trust Indenture Act.
(ii) Reports pursuant to this Section shall be transmitted by mail
(1) to all Holders of Registered Securities, as their names and addresses appear
in the Security Register and (2) to such Holders of Bearer Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and (3) except in the cases of
reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of a
Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any
<PAGE>
58
Securities are listed, and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange.
SECTION 6.04. Reports by Company. The Company will:
-------------------
(i) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it will file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and to
the extent provided in Section 6.03(ii), within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (i) and
(ii) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
<PAGE>
59
ARTICLE SEVEN
Remedies
--------
SECTION 7.01. Events of Default. "Event of Default", with respect to
------------------
any series of Securities, wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture or Board Resolution under which such series of Securities is issued or
in the form of Security for such series:
(i) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(ii) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(iii) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), 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 principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(iv) the entry of a decree or order by a court having jurisdiction in
the premises granting relief in respect of the Company in an involuntary
case under the Federal Bankruptcy Code, adjudging the Company a bankrupt,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under the Federal Bankruptcy Code or any other applicable Federal
<PAGE>
60
or State bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, custodian, assignee, trustee, sequestrator (or other similar
official) of the Company, or of substantially all of its properties, or
ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(v) the institution by the Company of proceedings to be adjudicated a
bankrupt, or the consent of the Company to the institution of bankruptcy
proceedings against it, or the filing by the Company of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or State bankruptcy,
insolvency or similar law, or the consent by the Company to the filing of
any such petition or to the appointment of a receiver, liquidator,
custodian, assignee, trustee, sequestrator (or other similar official) of
the Company or of substantially all of its properties; or
(viii) any other Event of Default provided with respect to Securities of
that series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If
---------------------------------------------------
an Event of Default with respect to any series of Securities for which there are
Securities Outstanding occurs and is continuing, then, and in every such case,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal of all the
Securities of such series (or, if the 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) to be immediately due and payable, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences, and any
Event of Default giving rise to such declaration shall not be deemed to have
occurred, if:
<PAGE>
61
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all overdue installments of interest on all Securities of
such series;
(b) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series;
(c) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
prescribed therefor by the terms of the Securities of such series; and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, the Security Registrar, any Paying Agent, and their agents
and counsel and all other amounts due the Trustee under Section 8.07;
and
(ii) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 7.13.
No such recession shall affect any subsequent default or impair any
right consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if:
- --------
(i) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable and
such default continues for a period of 30 days; or
(ii) default is made in the payment of the principal of or premium, if
any, on any Security of any series at the Maturity thereof;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon
<PAGE>
62
appertaining thereto, if any, the whole amount then due and payable on any such
Security or coupon for principal, premium, if any, and interest, with interest
upon the overdue principal and premium, if any, and (to the extent that payment
of such interest shall be lawful) upon overdue installments of interest, at the
rate or rates prescribed therefor by the terms of any such Security; and, in
addition thereto, such further amount as shall be sufficient to cover the
reasonable costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any series of Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. In case of the
---------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of any Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
<PAGE>
63
(i) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 8.07) and of the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities. All rights of action and claims under this Indenture or under the
- -----------
Securities of any series, or coupons (if any) appertaining thereto, may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or coupons appertaining thereto or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07,
be for the ratable benefit of the Holders of the Securities of such series and
coupons appertaining
<PAGE>
64
thereto in respect of which such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by
-------------------------------
the Trustee with respect to a series of Securities pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee, and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities of such series
or coupons appertaining thereto, if any, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
8.07;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of such series and coupons for principal, premium, if any, and
interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on Securities of such series and
coupons, if any, for principal, premium, if any, and interest,
respectively. The Holders of each series of Securities denominated in any
composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Securities and matured but unpaid interest on
such series of Securities in the currency in which such series of
Securities is denominated into Dollars at the Exchange Rate as of the
Business Day immediately preceding the date of payment; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any
--------------------
series or any related coupons shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to Securities of such series;
<PAGE>
65
(ii) the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(v) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such 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 Holders of Securities of such series or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
SECTION 7.08. Unconditional Right of Holders To Receive Principal,
----------------------------------------------------
Premium and Interest. Notwithstanding any other provision in this Indenture,
- ---------------------
the Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption or repayment, on the Redemption Date or Repayment Date)
and to institute suit for the enforcement of such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the Trustee or
-----------------------------------
any Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then
<PAGE>
66
and in every such case the Company, the Trustee and the Holders shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, lost,
destroyed or stolen Securities or coupons in the last paragraph of Section 3.06,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver. No delay or omission of
-----------------------------
the Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 7.12. Control by Holders. The Holders of a majority in
-------------------
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series; provided that:
--------
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders not taking part in such direction;
(iii) subject to the provisions of Section 8.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a
<PAGE>
67
Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability; and
(iv) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a majority in
------------------------
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder and its consequences, except a default not theretofore cured:
(i) in the payment of the principal of, premium, if any, or interest
on any Security of such series; or
(ii) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Securities of such series under this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this Indenture
----------------------
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or coupons for the
enforcement of the payment of the principal of, premium, if
<PAGE>
68
any, or interest on any Security or payment of any coupon on or after the
respective Stated Maturities expressed in such Security or coupon (or, in the
case of redemption or repayment, on or after the Redemption Date or Repayment
Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company
---------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE EIGHT
The Trustee
-----------
SECTION 8.01. Certain Duties and Responsibilities. (i) Except
------------------------------------
during the continuance of an Event of Default with respect to any series of
Securities:
(a) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to Securities
of such series, and no implied covenants or obligations shall be read into
this Indenture against the Trustee with respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificate 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 as to form to the
requirements of the Indenture.
<PAGE>
69
(ii) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect to such
series, 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.
(iii) 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 wilful misconduct, except that:
(a) this Subsection shall not be construed to limit the effect of
Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(iv) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 8.02. Notice of Default. Within 90 days after the occurrence
------------------
of any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series entitled to
<PAGE>
70
receive reports pursuant to Section 6.03(ii) notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
- -------- -------
principal of, premium, if any, or interest on any Security of such series, or
any related coupons or in the payment of any sinking fund installment with
respect to 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 Holders of Securities of such series; and provided further,
----------------
that, in the case of any default of the character specified in Section 7.01(iii)
with respect to Securities of such series, no such notice to Holders of
Securities of such series shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default", with
respect to Securities of any series, means any event which is, or after notice
or lapse of time, or both, would become, an Event of Default with respect to
Securities of such series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise
--------------------------
provided in Section 8.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall
<PAGE>
71
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(vi) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, security or other paper or document, but the Trustee, in its
discretion, may make further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney and, if so requested to do so by any of the Holders, at the sole
cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(viii) the Trustee shall not be charged with knowledge of any default (as
defined in Section 8.02) or Event of Default unless either (1) a
Responsible Officer of the Trustee shall have actual knowledge of such
default or Event of Default or (2) written notice of such default or Event
of Default shall have been given to the Trustee by the Company or any
Holder;
(ix) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture; and
(x) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security
<PAGE>
72
Registrar hereunder, the rights and protections afforded to the Trustee
pursuant to this Article Eight shall also be afforded to such Paying Agent,
Authenticating Agent or Security Registrar.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any Authenticating
--------------------
Agent, any Paying Agent, the Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 8.08 and 8.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee in
--------------------
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 8.07. Compensation and Reimbursement. The Company agrees:
-------------------------------
(i) to pay to the 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);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
<PAGE>
73
(iii) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, 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 or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest on
particular Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 7.01(iv) or (v), the
expenses (including the reasonable fees and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07 and any
lien arising hereunder shall survive the resignation or removal of any Trustee,
the discharge of the Company's obligations pursuant to Article Eleven of this
Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the
----------------------------------------
Trustee has or shall acquire a conflicting interest within the meaning of
Section 310 of the Trust Indenture Act, the Trustee shall either eliminate such
conflicting interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To
the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed
to have a conflicting interest with respect to the Securities of any series by
virtue of being Trustee with respect to the Securities of any particular series
of Securities other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There shall
----------------------------------------
at all times be a Trustee with respect to each series of Securities hereunder
which shall be a corporation organized and doing business under the laws
<PAGE>
74
of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000, subject to supervision or
examination by Federal or State authority; provided, however, that if Section
-------- -------
310(a) of the Trust Indenture Act or the rules and regulations of the Commission
under the Trust Indenture Act at any time permit a corporation organized and
doing business under the laws of any other jurisdiction to serve as trustee of
an indenture qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation organized and doing
business under the laws of any such jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(i) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities
at any time by giving written notice thereof to the Company. If an instrument
of acceptance by a successor Trustee shall not have been delivered to the
resigning Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
<PAGE>
75
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with respect to
any series of Securities after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security of such series
for at least six months; or
(b) the Trustee shall cease to be eligible under Section 8.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any Holder of Securities of such
series; or
(c) the Trustee shall become incapable of acting with respect to any
series of Securities 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, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such 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 with respect to such series.
(v) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 8.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee
<PAGE>
76
with respect to such series, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee with
respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment for the Securities of such series located
outside the United States. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Principal Corporate Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In the
---------------------------------------
case of the appointment hereunder of a successor Trustee with respect to any
series of Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective with respect to all or any series as to
which it is resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to all or any
such series; but, on request of the Company or such successor Trustee, such
retiring Trustee shall upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of such retiring Trustee with respect to all or any such series; and
shall duly assign, transfer and deliver to such successor Trustee all property
and money
<PAGE>
77
held by such retiring Trustee hereunder with respect to all or any such series,
subject nevertheless to its lien, if any, provided for in Section 8.07.
(ii) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such 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; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject nevertheless to its lien, if any,
provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more
<PAGE>
78
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (i) or (ii) of this Section,
as the case may be.
(iv) No successor Trustee with respect to a series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to such series under this
Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business of Trustee. Any corporation into which the Trustee may be merged or
- --------------------
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder; provided that such corporation 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. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims Against Company. If
--------------------------------------------------
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
Section 311 of the Trust Indenture Act regarding the collection of any claims as
a creditor against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The Trustee may
-------------------------------------
appoint an Authenticating Agent or Agents, which may include any Affiliate of
the Company, with respect to one or more series of Securities. Such
Authenticating Agent or Agents at the option of the Trustee shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series issued
upon original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the
<PAGE>
79
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Whenever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication or the delivery of Securities to the
Trustee for authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent,
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent and delivery of Securities to the Authenticating Agent on
behalf of the Trustee. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $5,000,000 and subject to
supervision or examination by Federal or State authority. Notwithstanding the
foregoing, an Authenticating Agent located outside the United States may be
appointed by the Trustee if previously approved in writing by the Company and if
such Authenticating Agent meets the minimum capitalization requirements of this
Section 8.14. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
--------
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the
<PAGE>
80
Company. The Trustee may at any time (and upon request by the Company shall)
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ], as Trustee,
by
___________________________
as Authenticating Agent
by
___________________________
Authorized Signatory
ARTICLE NINE
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
---------------------------------------------------
Without the consent of any Holder of any Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
<PAGE>
81
(i) to evidence the succession of another corporation or Person to the
Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one or
more series of Securities 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 Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit of the
Holders of Securities of all or any series of Securities or coupons (and if
such covenants are to be for the benefit of less than all series of
Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any right
or power herein conferred upon the Company; or
(iv) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under the Indenture; provided that such action shall not adversely affect
--------
the interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(v) to add any additional Events of Default with respect to all or any
series of the Securities (and, if such Event of Default is applicable to
less than all series of Securities, specifying the series to which such
Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any) or any interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form; provided any such action
--------
shall not adversely affect the interests of the Holders of
<PAGE>
82
Securities of any series or any related coupons in any material respect; or
(vii) to add to, change or eliminate any of the provisions of this
Indenture; provided that any such addition, change or elimination (a) shall
--------
become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision or
(b) shall not apply to any Securities Outstanding; or
(viii) to establish the form or terms of Securities of any series as
permitted by Sections 2.02 and 3.01; or
(ix) to add to or change any provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by the terms
thereof; or
(xi) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to
the Trust Indenture Act; provided such action shall not adversely affect
--------
the interest of Holders of Securities of any series or any appurtenant
coupons in any material respect.
SECTION 9.02. Supplemental Indentures With Con-sent of Holders. With
-------------------------------------------------
the consent of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture or indentures (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series and any related coupons under this Indenture; provided, however, that no
-------- -------
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
<PAGE>
83
(i) change the Maturity of the principal of, or the Stated Maturity of
any installment of interest (or premium, if any) on, any Security, or
reduce the principal amount thereof or any premium thereon or the rate of
interest thereon, or change the obligation of the Company to pay additional
amounts pursuant to Section 5.04 (except as contemplated by Section
10.01(i) and permitted by Section 9.01), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 7.02, or change the method of calculating interest thereon or
the coin or currency in which any Security (or premium, if any, thereon) or
the interest thereon is payable, or reduce the minimum rate of interest
thereon, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment
Date);
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required for
any waiver of certain defaults hereunder and their consequences) provided
for in this Indenture or reduce the requirements of Section 15.04 for a
quorum;
(iii) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived.
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 Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any
<PAGE>
84
proposed supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
-------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
8.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
and complies with this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, liabilities, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution
----------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
------------------------------------
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
<PAGE>
85
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
---------------------------------------------
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms.
-----------------------------------------------------
The Company shall not consolidate with or merge into any other corporation or
convey or transfer its properties and assets substantially as an entirety to any
Person, unless:
(i) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, premium, if any, and interest
(including all additional amounts, if any, payable pursuant to Section
5.04) on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any
---------------------------------
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
10.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein. In the event of any such conveyance or
transfer, the Company as the predecessor corporation shall be relieved of all
obligations and covenants under this
<PAGE>
86
Indenture and may be dissolved, wound up and liquidated at any time thereafter.
ARTICLE ELEVEN
Satisfaction and Discharge
--------------------------
SECTION 11.01. Satisfaction and Discharge of Indenture. This
----------------------------------------
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly provided
for and rights to receive payments thereon and any right to receive additional
amounts, as provided in Section 5.04), and the Trustee, on receipt of a Company
Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(i) either:
(a) all Securities theretofore authenticated and delivered (other
than (1) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has not been waived as provided in
Section 3.05, (2) coupons appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 4.06, (3) coupons
appertaining to Bearer Securities surrendered for repayment pursuant
to Section 15.03 and maturing after the Repayment Date, whose
surrender has been waived as provided in Section 15.03, (4) Securities
and coupons which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.06, and (5) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
5.03) have been delivered to the Trustee for cancellation; or
(b) all such Securities not theretofore delivered to the Trustee
for cancellation:
(1) have become due and payable, or
<PAGE>
87
(2) will become due and payable at their Maturity within one
year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (b) (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for the
purpose, an amount sufficient to pay and discharge the entire indebtedness
on such Securities and coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest to the date of
such deposit (in the case of Securities which have become due and payable),
or to the Maturity or Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive.
SECTION 11.02. Application of Trust Money. Subject to the provisions
---------------------------
of the last paragraph of Section 5.03, all money deposited with the Trustee
pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
<PAGE>
88
SECTION 11.03. Reinstatement. If the Trustee or any Paying Agent is
--------------
unable to apply any money in accordance with Section 11.02 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 until such time as the Trustee or any Paying Agent is permitted to
apply all such money in accordance with Section 11.02.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
----------------------------------------
Officers and Directors
----------------------
SECTION 12.01. Exemption from Individual Liability. No recourse
------------------------------------
under or upon any obligation, covenant or agreement of this Indenture, or of any
Security or coupon, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through 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 this Indenture and the
obligations issued hereunder are solely corporate obligations of the Company,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or coupons or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Securities.
<PAGE>
89
ARTICLE THIRTEEN
Sinking Funds
-------------
SECTION 13.01. Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of 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 Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 13.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto and (ii) may
apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
--------
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not less
------------------------------------------
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee and the Security Registrar
an Officers' Certificate specifying (i) the amount of the next ensuing sinking
fund payment for that series pursuant to the
<PAGE>
90
terms of that series, (ii) the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 13.02,
and (iii) that none of such Securities has theretofore been so credited and
stating the basis for such credit, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each sinking fund
payment date the Security Registrar shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 4.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 4.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 4.06 and 4.07 and shall be subject to
Section 4.08.
ARTICLE FOURTEEN
Repayment at the Option of Holders
----------------------------------
SECTION 14.01. Applicability of Article. Securities of any series
-------------------------
which are repayable at the option of the Holders thereof before their Stated
Maturity shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Securities of such series) in accordance
with this Article.
SECTION 14.02. Repayment of Securities. Each Security which is
------------------------
subject to repayment in whole or in part at the option of the Holder thereof on
a Repayment Date shall be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 14.03. Exercise of Option, Notice. Each Holder desiring to
---------------------------
exercise such Holder's option for repayment shall, as conditions to such
repayment, surrender the Security to be repaid in whole or in part together with
written notice of the exercise of such option at any office or agency of the
Company in a Place of Payment, not less than 30 nor more than 45 days prior to
the Repayment Date; provided, however, that surrender of Bearer Securities
-------- -------
together with written notice of exercise of such option shall be made at an
office or agency located outside the United States except as otherwise provided
in Section 5.02. Such notice, which shall be irrevocable, shall specify the
principal amount of such Security to be repaid, which shall
<PAGE>
91
be equal to the minimum authorized denomination for such Security or an integral
multiple thereof, and shall identify the Security to be repaid and, in the case
of a partial repayment of the Security, shall specify the denomination or
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
-------- -------
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series and
tenor, of any authorized denomination specified in the foregoing notice, in an
aggregate principal amount equal to any portion of the principal of the
Registered Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series and tenor of any
authorized denomination or denominations specified in the foregoing notice, in
an aggregate principal amount equal to any portion of the principal of the
Security so surrendered which is not to be repaid; provided, however, that the
-------- -------
issuance of a Registered Security therefor shall be subject to applicable laws
and regulations, including provisions of the United States Federal income tax
laws and regulations in effect at the
<PAGE>
92
time of the exchange; neither the Company, the Trustee nor the Security
Registrar shall issue Registered Securities for Bearer Securities if it has
received an Opinion of Counsel that as a result of such issuance the Company
would suffer adverse consequences under the United States Federal income tax
laws then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid only in part, to the portion
of the principal of such Security which has been or is to be repaid.
SECTION 14.04. Election of Repayment by Remarketing Entities. The
----------------------------------------------
Company may elect, with respect to Securities of any series which are repayable
at the option of the Holders thereof before their Stated Maturity, at any time
prior to any Repayment Date to designate one or more Remarketing Entities to
purchase, at a price equal to the Repayment Price, Securities of such series
from the Holders thereof who give notice and surrender their Securities in
accordance with Section 14.03.
SECTION 14.05. Securities Payable on the Repayment Date. Notice of
-----------------------------------------
exercise of the option of repayment having been given and the Securities so to
be repaid having been surrendered as aforesaid, such Securities shall, unless
purchased in accordance with Section 14.04, on the Repayment Date become due and
payable at the price therein specified and from and after the Repayment Date
such Securities shall cease to bear interest and shall be paid on the Repayment
Date, and the coupons for such interest appertaining to Bearer Securities so to
be repaid, except to the extent provided above, shall be void, unless the
Company shall default in the payment of such price, in which case the Company
shall continue to be obligated for the principal amount of such Securities and
shall be obligated to pay interest on such principal amount at the rate
prescribed therefor by such Securities from time to time until payment in full
of such principal amount.
<PAGE>
93
ARTICLE FIFTEEN
Meetings of Holders of Securities
---------------------------------
SECTION 15.01. Purposes for Which Meetings May Be Called. If
------------------------------------------
Securities of a series are issuable in whole or in part as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other Act provided
by this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 15.02. Call, Notice and Place of Meetings. (i) The Trustee may
-----------------------------------
at any time call a meeting of Holders of Securities of any series issuable in
whole or in part as Bearer Securities for any purpose specified in Section
15.01, to be held at such time and at such place in the City of Memphis,
Tennessee, the Borough of Manhattan, The City of New York, or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any 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 given, in the
manner provided in Section 1.06, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any such series shall have requested the Trustee to call a meeting of the
Holders of Securities of such series for any purpose specified in Section 15.01,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Memphis, Tennessee, the Borough of Manhattan, The City of New York, or in
London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (i) of this Section.
<PAGE>
94
SECTION 15.03. Persons Entitled to Vote at Meetings. To be entitled
-------------------------------------
to vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 15.04. Quorum; Action. The Persons entitled to vote a
---------------
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of a greater percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such greater
percentage in principal amount of the Outstanding Securities of such series
shall 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 Holders of Securities of such series, be dissolved. In the absence
of a quorum in any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairperson 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 chairperson 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 15.02(i), 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 Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the provisos to 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 only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as
- -------- -------
<PAGE>
95
limited by the provisos to Section 9.02, any resolution with respect to any
consent or waiver which this Indenture expressly provides may be given by the
Holders of a greater percentage in principal amount of the Outstanding
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 such greater percentage in principal amount of the
Outstanding Securities of that series; and provided further that, except as
-------- -------
limited by the provisos to Section 9.02, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority in principal
amount of the Outstanding 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 by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 15.05. Determination of Voting Rights; Conduct and
-------------------------------------------
Adjournment of Meetings.
- ------------------------
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series 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 deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or, in the case of Bearer Securities, by having the signature of
the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
<PAGE>
96
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 15.02(ii), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in any composite currency or a Foreign Currency) of Securities of
such series held or represented by him; provided, however, that no vote shall be
-------- -------
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairperson of the meeting not to be Outstanding.
The chairperson of the meeting shall have no right to vote, except as a Holder
of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 15.06. Counting Votes and Recording Action of Meetings. The
------------------------------------------------
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary
<PAGE>
97
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 given as provided in
Section 15.02 and, if applicable, Section 15.04. Each copy shall be signed and
verified by the affidavits of the permanent chairperson and secretary of the
meeting and one such copy shall be delivered to the Company, and another 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.
ARTICLE SIXTEEN
Miscellaneous
-------------
SECTION 16.01. 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.
The Bank of New York, hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
<PAGE>
98
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
NATIONAL COMMERCE
BANCORPORATION,
by
_______________________
Name:
Title:
[Seal]
Attest: [CORPORATE SEAL]
_____________________________
Assistant Secretary
The Bank of New York, as
Trustee,
by
_______________________
Name:
Title:
[Seal]
[CORPORATE SEAL]
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On this day of , 1999, before me personally came to me
known, , who, being by me duly sworn, did depose and say that he
resides at [ ]; that he is [ ] of NATIONAL
COMMERCE BANCORPORATION, one of the corporations described in and which executed
the foregoing instrument; that he knows the corporate seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
__________________________
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ,)
) ss.:
COUNTY OF ,)
On this day of , 1999, before me personally appeared
, to me known, who, being by me duly sworn, did depose and say that he resides
at ; that he is a of [ ], one of the
parties described in and which executed the foregoing instrument; that he knows
the corporate seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
__________________________
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
CERTIFICATE
...................
[Insert title or sufficient description of
Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or, if a beneficial interest
in the Securities is being acquired by or on behalf of a United States person,
that such United States person is a financial institution within the meaning of
Section 1.165-12(c)(1)(v) of the United States Treasury regulations which agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended and the regulations thereunder. If
the undersigned is a dealer, the undersigned agrees to obtain a similar
certificate from each person entitled to delivery of any of the above-captioned
Securities in bearer form purchased from it; provided, however, that, if the
-------- -------
undersigned has actual knowledge that the information contained in such a
certificate is false, the undersigned will not deliver a Security in temporary
or definitive bearer form to the person who signed such certificate
notwithstanding the delivery of such certificate to the undersigned.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the above-
captioned Securities in bearer form as to all of such Securities.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably
<PAGE>
authorize you to produce this certificate or a copy thereof to any interested
party in such proceedings.
Dated: 19
[To be dated no earlier than 15 days prior to the Exchange Date]
[Name of Person Entitled to
Receive Bearer Security)
_____________________________
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. IN
CONNECTION WITH THE
EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY
CERTIFICATE
...................
[Insert title or sufficient description
of Securities to be delivered]
This is to certify with respect to $____ principal amount of the
above-captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Dated: , 19
[To be dated no earlier than
the Exchange Date]
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euroclear System]
[CEDEL S.A.]
By ______________________________
<PAGE>
EXHIBIT C
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
...................
[Insert title or sufficient description of Securities]
This is to certify that, as of the Interest Payment Date on [Insert
Date], the undersigned, which is a holder of an interest in the temporary global
Security representing the above Securities, is not a United States person.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We confirm that the interest payable on such Interest Payment Date
will be paid to each of the persons appearing in our records as being entitled
to interest to be paid on the above date from whom we have received a written
certification dated not earlier than 15 days prior to such Interest Payment Date
to the effect that the beneficial owner of such portion with respect to which
interest is to be paid on such date either is not a United States person or is a
United States person which is a financial institution which has provided an
Internal Revenue Service Form W-9 or is an exempt recipient as defined in United
States Treasury Regulations (S) 1.6049-4(c)(1)(ii). We undertake to retain
certificates received from our member organizations in connection herewith for
four years from the end of the calendar year in which such certificates are
received.
<PAGE>
The foregoing reflects any advice received subsequent to the date of
any certificate stating that the statements contained in such certificate are no
longer correct.
Dated: , 19
[To be dated on or after the
relevant Interest Payment Date]
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euroclear System]
[CEDEL S.A.]
By ______________________________
______
<PAGE>
EXHIBIT D
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
...................
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, no portion of the
temporary global Security representing the above-captioned Securities and held
by you for our account is beneficially owned by a United States person or, if
any portion thereof held by you for our account is beneficially owned by a
United States person, such United States person is a financial institution
within the meaning of Section 1.165-12(c)(1)(v) of the United States Treasury
regulations which agrees to comply with Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended and the regulations thereunder, and
certifies that either it has provided an Internal Revenue Service Form W-9 or is
an exempt recipient as defined in Section 1.6049-4(c)(1)(ii) of the United
States Treasury regulations.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the Interest Payment Date on [Insert
Date] as to any such portion of such temporary global Security.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be
<PAGE>
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated: , 19
[To be dated on or after the 15th
day before the relevant Interest
Payment Date]
[Name of Account Holder]
______________________________
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT 4.2
THIS INDENTURE is entered into as of April [ ], 1999,
between NATIONAL COMMERCE BANCORPORATION, a corporation organized
and existing under the laws of the State of Tennessee
(hereinafter called the "Company"), having its principal
executive office at One Commerce Square, Memphis, TN 38150, and
The Bank of New York, a New York banking corporation
(hereinafter called the "Trustee"), having its principal
corporate trust office at 101 Barclay Street, New York, New York
10286.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its
unsecured subordinated debentures, notes, bonds and other evidences of
indebtedness to be issued in one or more series (hereinafter called the
"Securities") as hereinafter set forth, and to provide therefor the Company has
duly authorized the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
-------------------------------------------------------
SECTION 1.01. Definitions. For all purposes of this Indenture, except
------------
as otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the
<PAGE>
2
terms of particular series of Securities established as contemplated by
Section 3.01;
(ii) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture. 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;
(iii) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(v) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as may be otherwise expressly provided herein or in
one or more indentures supplemental hereto, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of
the Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the
<PAGE>
3
English language, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general circulation in the
place in connection with which the term is used or in the financial community of
such place. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
["Authorized Officer" means the Chairman of the Board, the President,
any Vice Chairman of the Board, any Vice President, the Treasurer, the
Secretary, the Comptroller, any Assistant Comptroller, any Assistant Treasurer
or any Assistant Secretary of the Company.]
"Bearer Security" means any Security in the form established pursuant
to Section 2.02 which is payable to bearer, including, without limitation,
unless the context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on
which banking institutions in the City of Memphis, Tennessee and any Place of
Payment for the Securities are open for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonyme or its
successors.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if any time after
the execution and delivery of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
<PAGE>
4
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its [Chairman of the
Board, its President, a Vice Chairman of the Board, or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Comptroller, an Assistant
Comptroller, its Secretary or an Assistant Secretary], and delivered to the
Trustee.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Default" has the meaning specified in Section 7.07.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 3.01 until a successor Depositary
shall have been appointed pursuant to Section 3.05, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, "Depositary" as used with respect
to the Securities of any such series shall mean the Depositary with respect to
the Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
<PAGE>
5
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated
in Section 3.01.
"Exchange Rate Officer's Certificate" with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Securities denominated in any
composite currency or Foreign Currency, and signed by the [Chairman of the
Board, a Vice Chairman of the Board, the President, any Vice President, the
Treasurer or any Assistant Treasurer] of the Company or the Exchange Rate Agent
appointed pursuant to Section 3.01 and delivered to the Trustee.
"Existing Subordinated Indebtedness" means, unless otherwise
determined with respect to any series of Securities pursuant to Section 3.01,
the Company's [ ].
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"General Obligations" means, unless otherwise determined with respect
to any series of Securities pursuant to Section 3.01, all obligations of the
Company to make payment on account of claims in respect of derivative products
such as interest and foreign exchange rate contracts, commodity contracts and
similar arrangements, other than (i) obligations on account of Senior
Indebtedness, (ii) obligations on account of indebtedness for money borrowed
ranking pari passu with or subordinate to the Securities and (iii) obligations
---- -----
which by their terms are expressly stated not to be superior in right of payment
to the Securities or to rank on a parity with the Securities; provided, however,
-------- -------
that notwithstanding the foregoing, in the event that any rule, guideline or
interpretation promulgated or issued by the Board of Governors of the Federal
Reserve System (or other competent
<PAGE>
6
regulatory agency or authority), as from time to time in effect, establishes or
specifies criteria for the inclusion in regulatory capital of subordinated debt
of a bank holding company requiring that such subordinated debt be subordinated
to obligations to creditors in addition to those set forth above, then the term
"General Obligations" shall also include such additional obligations to
creditors, as from time to time in effect pursuant to such rules, guidelines or
interpretations. For purposes of this definition, "claim" shall have the meaning
assigned thereto in Section 101(4) of the Bankruptcy Code of 1978, as amended to
the date of this instrument.
"Global Exchange Date" has the meaning specified in Section
3.04(b)(iv).
"Global Security" means a Security issued to evidence all or a part of
a series of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in
whose name such Registered Security is registered in the Security Register and,
with respect to a Bearer Security (or any temporary Global Security) or a
coupon, means the bearer thereof.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security (or any installment of principal) becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the [Chairman of
the Board, the President, a Vice Chairman of the Board, or a 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 contain the statements set
forth in Section 1.02, if applicable.
<PAGE>
7
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be reasonably acceptable to the Trustee. Each such
opinion shall contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding" when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
--------
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) such Securities in lieu of which other Securities have been
authenticated and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities 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 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any
<PAGE>
8
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities or any coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest on the Securities of
that series are payable as specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the office of the Trustee, at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this instrument is at the
address set forth in the first paragraph of this instrument
"Principal Paying Agent" means the Paying Agent, if any, designated as
such by the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
<PAGE>
9
"Redemption Price", when used with respect to any Security to be
redeemed, means the price specified in such Security at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Remarketing Entity", when used with respect to the Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid
upon exercise of option for repayment by the Holder, means the date fixed for
such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid
upon exercise of option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee with direct responsibility for the administration of
this Indenture and also means, with respect to a particular corporate trust
matter, any other officer of the Trustee to whom such matter is referred because
of his knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture; provided,
--------
however, that, if at any time there is more than one Person acting as Trustee
- -------
under this Indenture, "Securities", with respect to any such Person, shall mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
<PAGE>
10
"Security Registrar" has the meaning specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on (i) all of the Company's indebtedness for money borrowed, other than
the Securities and the Existing Subordinated Indebtedness, whether outstanding
on the date of execution of this Indenture or thereafter created, assumed or
incurred, except such indebtedness as is by its terms expressly stated to be not
superior in right of payment to the Securities or the Existing Subordinated
Indebtedness or to rank pari passu with the Securities or the Existing
Subordinated Indebtedness and (ii) any deferrals, renewals or extensions of any
such Senior Indebtedness. The term "indebtedness for money borrowed" as used in
the foregoing sentence shall include, without limitation, any obligation of, or
any obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security, or
such installment of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at
least a majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having
ordinary voting power for the election of directors irrespective of whether or
not stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
<PAGE>
11
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939, as in force at the date as of
which this instrument was executed, and, to the extent required by law, as
amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture, means any Person who, for United States Federal income tax
purposes, is a foreign corporation, a nonresident alien individual, a non-
resident alien fiduciary of a foreign estate or trust, or a foreign partnership
one or more of the members of which is, for United States Federal income tax
purposes, a foreign corporation, a non-resident alien individual or a non-
resident alien fiduciary of a foreign estate or trust.
"vice president", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any
-------------------------------------
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, 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, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except as otherwise
expressly provided in this Indenture) shall include:
<PAGE>
12
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case
---------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments
<PAGE>
13
under this Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand,
----------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders or Holders of any series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Securities of a series are issuable in whole or in part as Bearer Securities,
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities duly called and
held in accordance with the provisions of Article Sixteen or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 8.01) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by or on behalf of any legal entity other than an individual,
such certificate or affidavit shall also constitute proof of the authority of
the Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
<PAGE>
14
(iii) The ownership of Registered Securities shall be proved by the
Security Register.
(iv) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank or other depositary, wherever situated,
if such certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding.
(v) The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the principal amount
and serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(vi) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
(vii) For purposes of determining the principal amount of Outstanding
Securities of any series the Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under the Indenture, each Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount
<PAGE>
15
determined by the Exchange Rate Agent by converting the principal amount of such
Security in the currency in which such Security is denominated into Dollars at
the Exchange Rate as of the date such Act is delivered to the Trustee and, where
it is hereby expressly required, to the Company, by Holders of the required
aggregate principal amount of the Outstanding Securities of such series (or, if
there is no such rate on such date, such rate on the date determined as
specified as contemplated in Section 3.01).
(viii) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
(ix) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 3.01 or pursuant to one or more
indentures supplemental hereto, a Holder, including a Depositary that is the
Holder of a Global Security, may make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given or
taken by Holders, and a Depositary that is the Holder of a Global Security may
provide its proxy or proxies to the beneficial owners of interests in any such
<PAGE>
16
Global Security through such Depositary's standing instructions and customary
practices.
(xi) The Company may fix a record date for the purpose of determining
the Persons who are beneficial owners of interests in any Global Security held
by a Depositary entitled under the procedures of such Depositary to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request,
--------------------------------------
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Principal Corporate Trust Office, Attention: Corporate
Trustee Administration Department; or
(ii) the Company by any Holder or by the Trustee shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid, to the Company, to the
attention of its Treasurer, addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or
---------------------------
any Security provides for notice to Holders of any event:
(1) such notice shall be sufficiently given (unless otherwise herein
or in such Security expressly provided) if in writing and mailed, first-
class, postage prepaid, to each Holder of Registered Securities affected by
such event, at his address as it
<PAGE>
17
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice.
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York
and, if the Securities of such series are then listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited
and such stock exchange shall so require, in London and, if the Securities
of such series are then listed on the Luxembourg Stock Exchange and such
stock exchange shall so require, in Luxembourg and, if the Securities of
such series are then listed on any other stock exchange and such stock
exchange shall so require, in any other required city outside the United
States, or, if not practicable, elsewhere in Europe on a Business Day at
least twice, the first such publication to be not earlier than the earliest
date, and not later than the latest date, prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person
<PAGE>
18
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
SECTION 1.07. Language of Notices, etc. Any request, demand,
-------------------------
authorization, direction, notice, consent, or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the extent
----------------------------------
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the TIA, such imposed duties or incorporated provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The Article
-----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements
-----------------------
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this
--------------------
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in
----------------------
the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Holders and, to the extent
provided in Article Fourteen hereof, the holders of Senior Indebtedness and
creditors in respect of General Obligations, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays. Unless otherwise provided as
---------------
contemplated by Section 3.01 with respect to any series of Securities, in any
case where any Interest Payment Date, Stated Maturity, Repayment Date or
Redemption Date of
<PAGE>
19
any Security or any date on which any Defaulted Interest is proposed to be paid
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provisions of the Securities or this Indenture) payment of the principal
of, premium, if any, or interest on any Securities need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Stated Maturity, Repayment Date or Redemption Date or on the date on which
Defaulted Interest is proposed to be paid and, if such payment is made, no
interest shall accrue on such payment for the period from and after any such
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date or
date on which Defaulted Interest is proposed to be paid, as the case may be.
SECTION 1.14. Governing Law. This Indenture and the Securities shall
--------------
be construed in accordance with and governed by the laws of the State of New
York.
ARTICLE TWO
Security Forms
--------------
SECTION 2.01. Forms Generally. All Securities and any related
----------------
coupons shall have 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 the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section
3.01, the Securities of a series shall be issuable solely in bearer form, or in
both registered form and bearer form. Unless otherwise specified as
contemplated by Section 3.01, Securities in bearer form shall have interest
coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any
<PAGE>
20
combination of these methods on a steel engraved border or steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Securities or coupons, as evidenced by their execution
of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be
-------------------
in one of the forms approved from time to time by or pursuant to a Board
Resolution or an indenture supplemental hereto. Upon or prior to the delivery
of a Security or coupons in any such form to the Trustee for authentication, the
Company shall deliver to the Trustee the following:
(i) such indenture supplemental hereto or the Board Resolution by or
pursuant to which such form of Security or coupons has been approved,
certified by the Secretary or an Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this
Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture;
and
(iv) the Opinion of Counsel required by Section 3.03 of this
Indenture.
If temporary Securities of any series are issued in global form as
permitted by Section 3.04, the form thereof also shall be established as
provided in this Section 2.02.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
------------------------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ],
as Trustee
by
_________________________________
Authorized Officer
<PAGE>
21
SECTION 2.04. Global Securities. If Securities of a series are
------------------
issuable in whole or in part in global form, as specified as contemplated by
Section 3.01, then, notwithstanding clause (xii) of Section 3.01 and the
provisions of Section 3.02, such Global Security shall represent such of the
outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced or increased to
reflect exchanges or increased to reflect the issuance of additional
uncertificated securities of such series. Any endorsement of a Global Security
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.03 or
Section 3.04.
Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form.
ARTICLE THREE
The Securities
--------------
SECTION 3.01. Title and Terms. The aggregate principal amount of
----------------
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued up to the aggregate principal amount of
Securities from time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
<PAGE>
22
(i) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate initial
public offering price of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of that series pursuant to
this Article Three or Sections 4.07, 9.06 or 15.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a percentage of the
aggregate principal amount thereof) at which the Securities will be issued;
(v) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable,
the Regular Record Date for the interest payable on any Interest Payment
Date and the basis upon which interest shall be calculated if other than
that of a 360-day year consisting of twelve 30-day months;
(vii) the extent to which any of the Securities will be issuable in
temporary or permanent global form, and in such case, the Depositary for
such Global Security or Securities, the terms and conditions, if any, upon
which such Global Security may be exchanged in whole or in part for
definitive securities, and the manner in which any interest payable on a
temporary or permanent Global Security will be paid, whether or not
consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section 5.02,
the Securities may be presented for registration of transfer or exchange;
(ix) the place or places where, subject to the provisions of Section
5.02, the principal of (and
<PAGE>
23
premium, if any) and interest, if any, on Securities of the series shall be
payable;
(x) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(xi) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(xii) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable; and, if other than $5,000 or any integral multiple
thereof, the denominations in which Bearer Securities of the series shall
be issuable;
(xiii) the currency or currencies of denominations of the Securities of
any series, which may be in Dollars, any Foreign Currency or any composite
currency, and, if any such currency of denomination is a composite
currency, the agency or organization, if any, responsible for overseeing
such composite currency;
(xiv) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the Exchange Rate and the Exchange Rate Agent;
(xv) if the amount of payments of principal of (and premium, if any) or
any interest on Securities of the series may be determined with reference
to an index, the method or methods by which such amounts shall be
determined;
(xvi) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be
<PAGE>
24
issuable with or without coupons or both and, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if
other than the date of original issuance of the first Security of such
series of like tenor and term to be issued;
(xvii) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 5.04;
(xviii) whether any of the Securities will be issued as Original Issue
Discount Securities and the portion of the principal amount of such
Securities which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 7.02;
(xix) information with respect to book-entry procedures, if any;
(xx) any addition to or change in the Events of Default or covenants of
the Company pertaining to the Securities of the series; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth,
or determined in the manner provided in such Officers' Certificate or in any
indenture supplement hereto.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
All Securities shall be subordinate and junior in right of payment to
the obligations of the Company to holders of Senior Indebtedness and creditors
in respect of General Obligations of the Company as provided in Article
Fourteen.
<PAGE>
25
Notwithstanding Section 3.01(ii) and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
SECTION 3.02. Denominations. The Securities of each series shall be
--------------
issuable in such form and denominations as shall be specified as contemplated by
Section 3.01. In the absence of any specification with respect to the
Securities of any series, the Registered Securities of each series shall be
issuable only as Securities without coupons in denominations of $1,000 and any
integral multiple thereof and the Bearer Securities of each series, if any,
shall be issuable with coupons and in denominations of $5,000 and any integral
multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
-----------------------------------------------
Securities shall be executed on behalf of the Company by its [Chairman of the
Board, its President, a Vice Chairman of the Board, or one of its Vice
Presidents, or its Treasurer and by its Secretary or one of its Assistant
Secretaries]. The signatures of any or all of these officers on the Securities
may be manual or facsimile. Coupons shall bear the facsimile signature of the
Company's [Chairman of the Board, its President, a Vice Chairman of the Board or
one of its Vice Presidents, or its Treasurer].
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
-------- -------
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that a Bearer Security may
----------------
be delivered in connection with its
<PAGE>
26
original issuance only if the Person entitled to receive such Bearer Security
shall have delivered to the Trustee, or such other Person as shall be specified
in a temporary Global Security delivered pursuant to Section 3.04, a certificate
in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the Securities
of a series are to be issued in whole or in part in the form of one or more
Global Securities in registered or permanent bearer form, then the Company shall
execute and the Trustee shall, in accordance with this Section and a Company
Order for the authentication and delivery of such Global Securities with respect
to such series, authenticate and deliver one or more Global Securities in
permanent or temporary form that (i) shall represent and shall be denominated in
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary and
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that:
(i) the form of such Securities and coupons, if any, has been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner
of determining such terms, have been established in conformity with the
provisions of this Indenture;
(iii) that such Securities and coupons, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any
<PAGE>
27
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable against the Company
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and to general principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section
3.03, if all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 3.03 at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued and such documents reasonably
contemplate the issuance of all Securities of such series; provided that any
--------
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company that as of the date of such request, the statements made
in the Officers' Certificate or other certificates delivered pursuant to
Sections 1.02 and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time in the aggregate principal
amount, if any, established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon the telephonic (promptly confirmed in writing), electronic or written order
of Persons designated in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution and that such Persons are authorized to
<PAGE>
28
determine, consistent with such Company Order, Officers' Certificate,
supplemental indenture or Board Resolution, such terms and conditions of said
Securities as are specified in such Company Order, Officers' Certificate,
supplemental indenture or Board Resolution.
Each Registered Security shall be dated the date of its
authentication; and unless otherwise specified as contemplated by Section 3.01,
each Bearer Security and any temporary Global Security referred to in Section
3.04 shall be dated as of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.06, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security or portion thereof shall have been duly authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that
such Security or portion thereof has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the preparation of
---------------------
definitive Securities of any series, the Company may execute, and upon Company
Order and the receipt of the certifications and opinions required under Sections
3.01 and 3.03, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denominations, substantially of the tenor of the
definitive Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities
<PAGE>
29
may determine, as evidenced by their execution of such Securities. In the case
of any series which may be issuable as Bearer Securities, such temporary
Securities may be in global form, representing such of the Outstanding
Securities of such series as shall be specified therein.
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form, each
of which shall be exchanged in accordance with the provisions of the
following paragraphs, if temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive Securities,
the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place
of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied, if applicable, by all unmatured coupons and all matured
coupons in default appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series of authorized
denominations; provided, however, that no definitive Bearer Security shall
-------- -------
be delivered in exchange for a temporary Registered Security; and provided
--------
further that a definitive Bearer Security shall be delivered in exchange
-------
for a temporary Bearer Security only in compliance with the conditions set
forth in the provisions of the third paragraph of Section 3.03. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities
of such series.
(ii) If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided in such
temporary Global Security, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the benefit
of the operator of Euroclear and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of such Securities (or to such other
accounts as they may direct). Upon receipt of written instructions (which
need not comply with Section 1.02) signed on behalf of
<PAGE>
30
the Company by any Person authorized to give such instructions, the Trustee
or any Authenticating Agent shall endorse such temporary Global Security to
reflect the initial principal amount, or an increase in the principal
amount, of Outstanding Securities represented thereby. Until such initial
endorsement, such temporary Global Security shall not evidence any
obligation of the Company. Such temporary Global Security shall at any time
represent the aggregate principal amount of Outstanding Securities
theretofore endorsed thereon as provided above, subject to reduction to
reflect exchanges as described below.
(iii) Unless otherwise specified in such temporary Global Security,
and subject to the second proviso in the following paragraph, the interest
of a beneficial owner of Securities of a series in a temporary Global
Security shall be exchanged for definitive Securities (including a
definitive Global Bearer Security) of such series and of like tenor
following the Global Exchange Date (as defined below) when the account
holder instructs Euroclear or CEDEL S.A., as the case may be, to request
such exchange on his behalf and delivers to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form required by Section 3.11(i), dated
no earlier than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL
S.A., the Trustee, any Authenticating Agent appointed for such series of
Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge
to the beneficial owners of such temporary Global Security, except that a
Person receiving definitive Securities must bear the cost of insurance,
postage, transportation and the like in the event that such Person does not
take delivery of such definitive Securities in person at the offices of
Euroclear or CEDEL S.A. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary Global Security shall
be delivered only outside the United States.
(iv) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security as the "Global Exchange Date" (the "Global
Exchange Date"), the Company shall deliver to the Trustee, or, if the
Trustee appoints an Authenticating Agent pursuant to Section 8.14, to any
such Authenticating Agent, definitive Securities in
<PAGE>
31
aggregate principal amount equal to the principal amount of such temporary
Global Security, executed by the Company. Unless otherwise specified as
contemplated by Section 3.01, such definitive Securities shall be in the
form of Bearer Securities or Registered Securities, or any combination
thereof, as may be specified by the Company, the Trustee or any such
Authenticating Agent, as may be appropriate. On or after the Global
Exchange Date, such temporary Global Security shall be surrendered by the
Common Depositary to the Trustee or any such Authenticating Agent, as the
Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities without charge and the Trustee or
any such Authenticating Agent shall authenticate and deliver, in exchange
for each portion of such temporary Global Security, an equal aggregate
principal amount of definitive Securities of the same series, of authorized
denominations and of like tenor as the portion of such temporary Global
Security to be exchanged, which, except as otherwise specified as
contemplated by Section 3.01, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof; provided, however, that,
-------- -------
unless otherwise specified in such temporary Global Security, upon such
presentation by the Common Depositary, such temporary Global Security is
accompanied by a certificate dated the Global Exchange Date or a subsequent
date and signed by Euroclear as to the portion of such temporary Global
Security held for its account then to be exchanged and a certificate dated
the Global Exchange Date or a subsequent date and signed by CEDEL S.A., as
to the portion of such temporary Global Security held for its account then
to be exchanged, each in the form required by Section 3.11(ii); and
provided further that a definitive Bearer Security (including a definitive
----------------
global Bearer Security) shall be delivered in exchange for a portion of a
temporary Global Security only in compliance with the conditions set forth
in the provisions of the third paragraph of Section 3.03.
(v) Upon any exchange of a portion of any such temporary Global
Security, such temporary Global Security shall be endorsed by the Trustee
or any such Authenticating Agent, as the case may be, to reflect the
reduction of the principal amount evidenced thereby, whereupon its
remaining principal amount shall be reduced for all purposes by the amount
so exchanged. Until so exchanged in full, such temporary Global Security
shall in all respects be entitled to the same benefits under this Indenture
as definitive Securities
<PAGE>
32
of such series authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 3.01, interest payable on
such temporary Global Security on an Interest Payment Date for Securities
of such series occurring prior to the applicable Global Exchange Date shall
be payable, without interest, to Euroclear and CEDEL S.A. on or after such
Interest Payment Date upon delivery by Euroclear and CEDEL S.A. to the
Trustee or the Paying Agent, as the case may be, of a certificate or
certificates in the form required by Section 3.11(iii), for credit on or
after such Interest Payment Date to the respective accounts of the Persons
who are the beneficial owners of such temporary Global Security on such
Interest Payment Date and who have each delivered to Euroclear or CEDEL
S.A., as the case may be, a certificate in the form required by Section
3.11(iv). Any interest so received by Euroclear and CEDEL S.A. and not paid
as herein provided prior to the Global Exchange Date shall be returned to
the Trustee or Paying Agent, as the case may be, which, upon expiration of
two years after such Interest Payment Date, shall repay such interest to
the Company on Company Request in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
----------------------------------------------------
With respect to Registered Securities, the Company shall keep or cause to be
kept a register (sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and the registration of
transfers of Registered Securities and the Company shall appoint a "Security
Registrar" and may appoint any "Co-Security Registrar", as may be appropriate,
to keep the Security Register. Such Security Register shall be in written form
or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the information contained in such
Security Register shall be available for inspection by the Trustee at the office
of the Security Registrar. In the event that any Registered Securities issued
hereunder have The City of New York as a Place of Payment, the Company shall
appoint either a Security Registrar or Co-Security Registrar located in The City
of New York.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 5.02 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and
<PAGE>
33
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of such series of any authorized denominations and of
a like aggregate principal amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of any such payment from the
Company; provided, however, that interest represented by coupons shall be
-------- -------
payable only upon presentation and surrender of those coupons at an office or
agency of a Paying Agent, maintained pursuant to Section 5.02 for such purpose,
located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after the
close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related date for
<PAGE>
34
payment of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for individual Securities represented
thereby, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 3.01(vii)
shall no longer be effective with respect to the Securities of such series and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series of like tenor
and terms in definitive form in an aggregate principal
<PAGE>
35
amount equal to the principal amount of the Global Security or Securities
representing such series in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
(a) to the Depositary or to each Person specified by such Depositary a
new Security or Securities of the same series, of like tenor and terms and
of any authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in an authorized denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
-------- -------
that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security other than in accordance with the provisions of
Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in definitive
form, such Global Securities shall be canceled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this Section
3.05 shall be registered in such names and in such authorized
<PAGE>
36
denominations, and delivered to such addresses, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Securities to the Persons in whose names such
Securities are so registered or to the Depositary. The Trustee shall deliver
Bearer Securities issued in exchange for a Global Security pursuant to this
Section 3.05 to the Depositary or to the Persons at such addresses, and in such
authorized denominations, as the Depositary for such Global Security, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing; provided, however, that no definitive Bearer
-------- -------
Security shall be delivered in exchange for a temporary Global Security other
than in accordance with the provisions of Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for
transfer or exchanged, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to Holders.
Neither the Company, the Security Registrar nor any Co-Security
Registrar shall be required (i) to issue, register the transfer of or exchange
any Securities of any series during a period beginning at the opening of
business 15 days before the day of selection of Securities of such series to be
redeemed and ending at the close of business on
<PAGE>
37
(A) if Securities of the series are issuable only as Registered Securities, the
day of the mailing of the relevant notice of redemption of Registered Securities
of such series so selected for redemption or (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer or exchange of any
Securities or portions thereof so selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities into Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange; none of the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges unless and until the Trustee receives a subsequent Company Order
to the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If
-------------------------------------------------
(i) any mutilated Security or Security with a mutilated coupon is surrendered to
the Trustee or the Security Registrar, or if the Company, the Trustee and the
Security Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and Stated Maturity and of like tenor and principal amount,
bearing a number not contemporaneously outstanding and, if applicable, with
coupons corresponding to the coupons appertaining thereto; provided, however,
-------- -------
that any new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 3.05.
<PAGE>
38
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security; provided,
--------
however, that payment of principal of (and premium, if any) and any interest on
- -------
Bearer Securities shall be payable only at an office or agency located outside
the United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security with a destroyed, lost or stolen coupon, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless
-----------------------------------------------
otherwise provided as contemplated by Section 3.01, interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall unless otherwise provided in such Security be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Unless otherwise specified as contemplated by Section 3.01,
in case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency referred to in Section 3.05) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding Interest
Payment
<PAGE>
39
Date, such Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture. At the option of the
Company, payment of interest on any Registered Security may be made by check in
the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of his having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted Interest
to the Persons in whose names any such Registered 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 Registered
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 be not more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder at his address as it appears in the
Security
<PAGE>
40
Register, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (ii). In case a Bearer
Security of any series is surrendered at the office or agency in a Place of
Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date of payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date for payment and
Defaulted Interest will not be payable on such proposed date for payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities with respect to which there exists such default
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 payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Subject to the limitations set forth in Section 5.02, the Holder of
any coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer Security,
----------------------
any coupons appertaining thereto and any temporary Global Security shall pass by
delivery.
<PAGE>
41
Prior to due presentment for registration of transfer of any
Registered Security, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.07) interest on such Security, and
for all purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating
Agent or the Security Registrar will have the responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interest of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest, and they
shall be fully protected in acting or refraining from acting on any such
information provided by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with respect
-------------
to a series of Securities, all Securities and coupons surrendered for payment,
registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered or surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture or such Securities. All cancelled Securities or coupons held
by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures and the Trustee
<PAGE>
42
shall deliver a certificate of such disposition to the Company.
SECTION 3.10. Computation of Interest. Interest on the Securities of
------------------------
each series shall be computed as shall be specified as contemplated by Section
3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided
----------------------
pursuant to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by a Person entitled to
receive a Bearer Security, such certification shall be provided
substantially in the form of Exhibit A hereto, with only such changes as
shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL
S.A. in connection with the exchange of a portion of a temporary Global
Security, such certification shall be provided substantially in the form of
Exhibit B hereto, with only such changes as shall be approved by the
Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL
S.A. in connection with payment of interest with respect to a temporary
Global Security prior to the related Global Exchange Date, such
certification shall be provided substantially in the form of Exhibit C
hereto, with only such changes as shall be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a beneficial owner of
a portion of a temporary Global Security in connection with payment of
interest with respect to a temporary Global Security prior to the related
Global Exchange Date, such certification shall be provided substantially in
the form of Exhibit D hereto, with only such changes as shall be approved
by the Company.
SECTION 3.12. Judgments. The Company may provide, pursuant to
----------
Section 3.01, for the Securities of any series that, to the fullest extent
possible under applicable law and except as may otherwise be specified as
contemplated in Section 3.01, (a) the obligation, if any, of the Company to pay
the principal of (and premium, if any) and interest on the Securities of any
series and any appurtenant coupons
<PAGE>
43
in a Foreign Currency, composite currency or Dollars (the "Designated Currency")
as may be specified pursuant to Section 3.01 is of the essence and agrees that
judgments in respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest on such
Securities and any appurtenant coupons shall, notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day on which such Holder
receives such payment; (c) if the amount in the Designated Currency that may be
so purchased for any reason falls short of the amount originally due, the
Company shall pay such additional amounts as may be necessary to compensate for
such shortfall; and (d) any obligation of the Company not discharged by such
payment shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
SECTION 3.13 CUSIP Numbers. The Company in issuing the Securities may
--------------
use "CUSIP" numbers or Euroclear or CEDEL reference numbers (if then generally
in use), and if, so, the Trustee shall use such numbers in notices of redemption
or other related material as a convenience to Holders; provided that any such
notice or other related material may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or other related material and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE FOUR
Redemption of Securities
------------------------
SECTION 4.01. Applicability of Article. Securities of any series
-------------------------
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and, except as otherwise specified as contemplated
by
<PAGE>
44
Section 3.01 for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice to Trustee. The election of
--------------------------------------
the Company to redeem any Securities redeemable at the option of the Company
shall be evidenced by an Officers' Certificate. In case of any redemption at
the election of the Company of the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee and the
Security Registrar of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (ii)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities To Be
---------------------------------------------------
Redeemed. If less than all the Securities of any series with the same terms are
- ---------
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Security Registrar from
the Outstanding Securities of such series having such terms not previously
called for redemption, by such method as the Security Registrar shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such series of a denomination
equal to or larger than the minimum authorized denomination for Securities of
such series. Unless otherwise provided by the terms of the Securities of any
series so selected for partial redemption, the portions of the principal of
Securities of such series so selected for partial redemption shall be, in the
case of Registered Securities, equal to $1,000 or an integral multiple thereof
or, in the case of Bearer Securities, equal to $5,000 or an integral multiple
thereof, and the principal amount of any such Security which remains outstanding
shall not be less than the minimum authorized denomination for Securities of
such series.
The Security Registrar shall promptly notify the Company, the Trustee
and the Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
<PAGE>
45
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be
---------------------
given in the manner provided in Section 1.06, not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series having the
same terms are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(iv) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and that interest, if
any, thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities, together in the case
of Bearer Securities with all remaining coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price;
(vi) that the redemption is from a sinking fund, if such is the case;
and
(vii) the CUSIP number or the Euroclear or the CEDEL reference number
(or any other number used by a Depositary to identify such Securities), if
any, of the Securities to be redeemed.
A notice of redemption published as contemplated by Section 1.06 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company
<PAGE>
46
or, on Company Request, by the Trustee in the name and at the expense of the
Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the
----------------------------
opening of business on any Redemption Date, the Company shall deposit or cause
to be deposited with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 5.03) an amount of money sufficient to pay the Redemption Price of all
the Securities which are to be redeemed on that date; provided, however, that
-------- -------
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 5.02, unless otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of
--------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Redemption Price) such Securities shall cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Securities for redemption in accordance with said notice,
such Securities shall be paid by the Company at the Redemption Price; provided,
--------
however, that installments of interest on Bearer Securities whose Stated
- -------
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent
<PAGE>
47
any such missing coupon in respect of which a deduction shall have been made
from the Redemption Price, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest represented by coupons shall be
-------- -------
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which is to
----------------------------
be redeemed only in part shall be surrendered at the office or agency of the
Company in a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, containing identical terms and conditions,
of any authorized denominations as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default. The
---------------------------------------------
Trustee shall not redeem any Securities (unless all Securities then Outstanding
are to be redeemed) or commence the giving of any notice of redemption of
Securities during the continuance of any Event of Default known to the Trustee,
except that where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall, subject to the provisions of
Section 14.04, redeem such Securities, provided funds are deposited with it for
such purpose. Subject to the rights of the holders of Senior Indebtedness and
creditors in respect of General Obligations, except as aforesaid, any moneys
theretofore or thereafter received by the Trustee shall, during the continuance
of such Event of Default, be held in trust for the benefit of the Holders and
applied in the manner set forth in Section 7.06; provided, however, that in case
-------- -------
such Event of Default shall have been waived as provided herein or otherwise
cured, such moneys shall
<PAGE>
48
thereafter be held and applied in accordance with the provisions of this
Article.
ARTICLE FIVE
Covenants
---------
SECTION 5.01. Payment of Principal, Premium and Interest. The
-------------------------------------------
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of, premium, if any, and interest
on the Securities of such series in accordance with the terms of the Securities
of such series, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 3.01 with respect to any series
of Securities, any interest due on Bearer Securities on or before Maturity shall
be payable only outside the United States upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 5.02. Maintenance of Office or Agency. If Securities of a
--------------------------------
series are issuable only as Registered Securities, the Company will maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change in
the location, of such office or agency. If Securities of a series may be
issuable as Bearer Securities, the Company will maintain (A) in the Borough of
Manhattan, The City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served, (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series which is
located outside the United States, an office or agency where Securities of that
series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 5.04); provided, however, that if the Securities of
-------- -------
that series are listed on The International Stock Exchange of the United
<PAGE>
49
Kingdom and the Republic of Ireland Limited or the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in London or Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange, and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for such series located
outside the United States an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations, and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Principal Corporate Trust Office of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for
payment (including payment of any additional amounts payable on Bearer
Securities of that series pursuant to Section 5.04) at the place specified for
the purpose as contemplated by Section 3.01, and the Company hereby appoints the
Trustee as its agent to receive such respective presentations, surrenders,
notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, payment of principal of and any premium
-------- -------
and interest denominated in Dollars (including additional amounts payable in
respect thereof) on any Bearer Security may be made at an office or agency of,
and designated by, the Company located in the United States if (but only if)
payment of the full amount of such principal, premium, interest or additional
amounts in Dollars at all offices outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or similar restrictions and the
Trustee receives an Opinion of Counsel that such payment within the United
States is legal. Unless
<PAGE>
50
otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such currency
maintained by the payee with a bank located outside the United States.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes specified above in this Section
and may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
-------- -------
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. Unless and until the
Company rescinds one or more such appointments, the Company hereby appoints
[(i)] [ ], as its Paying Agent in The City of New York with
respect to all series of Securities having a Place of Payment in The City of New
York [and (ii) [ ] at its principal office as its Paying Agent with respect to
all series of Securities having a Place of Payment in [ ]].
SECTION 5.03. Money for Security Payments To Be Held in Trust. If
------------------------------------------------
the Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of such series and any appurtenant
coupons, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of, premium, if any, or interest on any Securities of
such series and any appurtenant coupons, 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
<PAGE>
51
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee subject to the provisions
of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of,
premium, if any, or interest on Securities of such series and any
appurtenant coupons in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(ii) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal, premium or interest on the Securities of such series
or any appurtenant coupons; and
(iii) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payments by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security of any series or any appurtenant coupons and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security or any coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the
<PAGE>
52
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
-------- -------
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 5.04. Additional Amounts. If the Securities of a series
-------------------
provide for the payment of additional amounts, the Company will pay to the
Holder of any Security of any series or any coupon appertaining thereto
additional amounts as provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (or premium, if any)
or interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in this Section to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest on the Securities of
that series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
<PAGE>
53
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or reasonable
expense incurred without negligence or bad faith on their part arising out of or
in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 5.05. Statement as to Compliance. The Company will deliver
---------------------------
to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officers' Certificate (which need not comply with Section 1.02)
(provided, however, that one of the signatories of which shall be the Company's
-------- -------
principal executive officer, principal financial officer or principal accounting
officer) stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has
been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations and complied with all conditions
and covenants under this Indenture and under the terms of the Securities
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, condition or covenant specifying each such default
known to him and the nature and status thereof, and (b) no event has
occurred and is occurring which is, or after notice or lapse of time or
both would become, a Default, or if such an event has occurred and is
continuing, specifying such event known to him and the nature and status
thereof.
For purposes of this Section, compliance or default shall be
determined without regard to any period of grace or requirement of notice
provided for herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and
----------------------------------------------
Franchises. So long as any of the Securities shall be Outstanding, the Company
- -----------
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises to carry on its
business; provided, however, that nothing in
-------- -------
<PAGE>
54
this Section 5.06 shall (i) require the Company to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders, (ii) prevent any consolidation or merger of the Company, or any
conveyance or transfer of its property and assets substantially as an entirety
to any person, permitted by Article Ten, or (iii) prevent the liquidation or
dissolution of the Company after any conveyance or transfer of its property and
assets substantially as an entirety to any person permitted by Article Ten.
ARTICLE SIX
Holders' Lists and Reports by Trustee and Company
-------------------------------------------------
SECTION 6.01. Company To Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee (i)
- --------
semiannually, not more than 10 days after each March 1 and September 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
March 1 and September 1, and (ii) at such other times as the Trustee may request
in writing, within 30 days after 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 requested to be furnished; provided, however, that if and so
-------- -------
long as the Trustee is the Security Registrar for Securities of a series, no
such list need be furnished with respect to such series of Securities.
SECTION 6.02. Preservation of Information; Communications to Holders.
------------------------------------------------------
(i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee
<PAGE>
55
reasonable proof that each such applicant has owned a 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 Securities of such series or with the Holders of all Securities with
respect to their rights under this Indenture or under such 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:
(a) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 6.02(i); or
(b) inform such applicants as to the approximate number of Holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 6.02(i), and as to the approximate cost
of mailing to such Holders 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 Holder of a Security of such series or all Holders of
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
6.02(i), 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 Commission, 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 Securities of such series or all 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 the Commission, 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, the Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met
<PAGE>
56
and shall enter an order so declaring, the Trustee shall mail copies of such
material to all such Holders of Securities 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.
(iii) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 6.02(ii), 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 Section 6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May 15
-------------------
of each year commencing with the year 2000, the Trustee shall mail to each
Holder reports concerning the Trustee and its action under the Indenture as may
be required pursuant to Section 313(a) of the Trust Indenture Act if and to the
extent and in the manner provided pursuant thereto. The Trustee shall also
comply with the other provisions of Section 313 of the Trust Indenture Act.
(ii) Reports pursuant to this Section shall be transmitted by mail
(1) to all Holders of Registered Securities, as their names and addresses appear
in the Security Register and (2) to such Holders of Bearer Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and (3) except in the cases of
reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of a
Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any Securities are listed, and also with the Commission. The Company
will notify the Trustee when any Securities are listed on any securities
exchange.
<PAGE>
57
SECTION 6.04. Reports by Company. The Company will:
-------------------
(i) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it will file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and to
the extent provided in Section 6.03(ii), within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (i) and
(ii) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE SEVEN
Remedies
--------
SECTION 7.01. Events of Default. "Event of Default", with respect to
------------------
any series of Securities, wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
<PAGE>
58
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture or Board Resolution under which such series of Securities is issued or
in the form of Security for such series:
(i) the entry of a decree or order by a court having jurisdiction in
the premises granting relief in respect of the Company in an involuntary
case under the Federal Bankruptcy Code, adjudging the Company a bankrupt,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under the Federal Bankruptcy Code or any other applicable Federal or State
bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, custodian, assignee, trustee, sequestrator (or other similar
official) of the Company, or of substantially all of its properties, or
ordering the winding up or liquidation of its affairs under any such law,
and the continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days; or
(ii) the institution by the Company of proceedings to be adjudicated
a bankrupt, or the consent of the Company to the institution of bankruptcy
proceedings against it, or the filing by the Company of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or State bankruptcy,
insolvency or similar law, or the consent by the Company to the filing of
any such petition or to the appointment of a receiver, liquidator,
custodian, assignee, trustee, sequestrator (or other similar official) of
the Company, or of substantially all of its properties under any such law;
or
(iii) any other Event of Default provided with respect to Securities
of that series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If
---------------------------------------------------
an Event of Default with respect to any series of Securities for which there are
Securities Outstanding occurs and is continuing, then, and in every such case,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal of all the
Securities of such series (or, if the Securities of that
<PAGE>
59
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) to be immediately due
and payable, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration the same shall become immediately due
and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences, and any
Event of Default giving rise to such declaration shall not be deemed to have
occurred, if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all overdue installments of interest on all Securities of
such series;
(b) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series;
(c) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
prescribed therefor by the terms of the Securities of such series; and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, the Security Registrar, any Paying Agent, and their agents
and counsel and all other amounts due the Trustee under Section 8.07;
and
(ii) all other Defaults with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 7.13.
<PAGE>
60
No such recession shall affect any subsequent default or impair any
right consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if:
- --------
(i) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable and
such default continues for a period of 30 days; or
(ii) default is made in the payment of the principal of or premium, if
any, on any Security of any series at the Maturity thereof;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest shall be
lawful) upon overdue installments of interest, at the rate or rates prescribed
therefor by the terms of any such Security; and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If a Default with respect to any series of Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
<PAGE>
61
SECTION 7.04. Trustee May File Proofs of Claim. In case of the
---------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of any Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 8.07) and of the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities. All rights of action and claims
- ----------
<PAGE>
62
under this Indenture or under the Securities of any series, or coupons (if any)
appertaining thereto, may be prosecuted and enforced by the Trustee without the
possession of any of the Securities of such series or coupons appertaining
thereto or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 8.07, be for the ratable benefit of the Holders of the
Securities of such series and coupons appertaining thereto in respect of which
such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by
-------------------------------
the Trustee with respect to a series of Securities pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee, and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities of such series
or coupons appertaining thereto, if any, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
8.07;
SECOND: Subject to Article Fourteen, to the payment of the amounts
then due and unpaid upon the Securities of such series and coupons for
principal, premium, if any, and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on
Securities of such series and coupons, if any, for principal, premium, if
any, and interest, respectively. The Holders of each series of Securities
denominated in any composite currency or a Foreign Currency and any matured
coupons relating thereto shall be entitled to receive a ratable portion of
the amount determined by the Exchange Rate Agent by converting the
principal amount Outstanding of such series of Securities and matured but
unpaid interest on such series of Securities in the currency in which such
series of Securities is denominated into Dollars at the Exchange Rate as of
the Business Day immediately preceding the date of payment; and
<PAGE>
63
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any
--------------------
series or any related coupons shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee
of a continuing Default with respect to Securities of such series;
(ii) the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Default in its
own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such 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 Holders of Securities of such series or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
The following events shall be "Defaults" with respect to any series of
Securities under this Indenture:
(a) an Event of Default with respect to such series specified in
Section 7.01; or
<PAGE>
64
(b) default in the payment of the principal of or premium, if any, on
any Security of such series at its Maturity; or
(c) default in the payment of any interest upon any Security of such
series as and when the same shall become due and payable, and continuance
of such default for a period of 30 days; or
(d) failure on the part of the Company duly to observe or perform any
of the other covenants or agreements on its part in the Securities of such
series or in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely
for the benefit of series of Securities other than that series) and
continuance of such failure for a period of 90 days after the date on which
written notice of such failure, requiring the Company to remedy the same
and stating that such notice is a "Notice of Default" hereunder, shall have
been given by registered 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 Securities of such series at the time Outstanding;
or
(e) any other Default provided with respect to Securities of that
Series.
SECTION 7.08. Unconditional Right of Holders To Receive Principal,
----------------------------------------------------
Premium and Interest. Notwithstanding any other provision in this Indenture,
- ---------------------
the Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption or repayment, on the Redemption Date or Repayment Date)
and to institute suit for the enforcement of such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the Trustee or
-----------------------------------
any Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such
<PAGE>
65
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as otherwise
-------------------------------
provided with respect to the replacement or payment of mutilated, lost,
destroyed or stolen Secur-ities or coupons in the last paragraph of Section
3.06, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver. No delay or omission of
-----------------------------
the Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Default shall impair any such right or remedy or
constitute a waiver of any such Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 7.12. Control by Holders. The Holders of a majority in
-------------------
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series; provided that:
--------
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction;
(iii) subject to the provisions of Section 8.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability; and
<PAGE>
66
(iv) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a majority in
------------------------
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder and its consequences, except a default not theretofore cured:
(i) in the payment of the principal of, premium, if any, or interest
on any Security of such series; or
(ii) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of the Securities of such series under this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this Indenture
----------------------
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or coupons for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Security or payment of any coupon on or after the respective Stated
Maturities expressed in such Security or coupon (or, in the case of redemption
or repayment, on or after the Redemption Date or Repayment Date).
<PAGE>
67
SECTION 7.15. Waiver of Stay or Extension Laws. The Company covenants
---------------------------------
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE EIGHT
The Trustee
-----------
SECTION 8.01. Certain Duties and Responsibilities. (i) Except
------------------------------------
during the continuance of a Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to Securities
of such series, and no implied covenants or obligations shall be read into
this Indenture against the Trustee with respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificate 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 as to form to the
requirements of the Indenture.
(ii) In case a Default with respect to any series of Securities has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture with respect to such series, 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.
<PAGE>
68
(iii) 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 wilful misconduct, except that:
(a) this Subsection shall not be construed to limit the effect of
Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(iv) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 8.02. Notice of Default. Within 90 days after the occurrence
------------------
of any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series entitled to
receive reports pursuant to Section 6.03(ii) notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
- -------- -------
principal of, premium, if any, or interest on any Security of such series, or
any related coupons or in the payment of any sinking fund installment with
respect to Securities of such series the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
<PAGE>
69
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Securities of such series; and
provided further that in the case of any default of the character specified in
- ----------------
Section 7.07(d) with respect to Securities of such series, no such notice to
Holders of Securities of such series shall be given until at least 90 days after
the occurrence thereof. For the purpose of this Section, the term "default",
with respect to Securities of any series, means any event which is, or after
notice or lapse of time, or both, would become, a Default or an Event of Default
with respect to Securities of such series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise
--------------------------
provided in Section 8.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and
<PAGE>
70
liabilities which might be incurred by it in compliance with such request
or direction;
(vi) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, security or other paper or document, but the Trustee, in its
discretion, may make further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney and, if so requested to do so by any of the Holders, at the sole
cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(viii) the Trustee shall not be charged with knowledge of any Default
unless either (1) a Responsible Officer of the Trustee shall have actual
knowledge of such Default or (2) written notice of such Default shall have
been given to the Trustee by the Company or any Holder; and
(ix) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture; and
(x) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article Eight shall
also be afforded to such Paying Agent, Authenticating Agent or Security
Registrar.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
<PAGE>
71
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any Authenticating
--------------------
Agent, any Paying Agent, the Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 8.08 and 8.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee in
--------------------
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 8.07. Compensation and Reimbursement. The Company agrees:
-------------------------------
(i) to pay to the 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);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(iii) to indemnify the Trustee and its officers, directors, employees
and agents for, and to hold it and them harmless against, any loss,
liability or expense incurred without negligence or bad faith on its or
their part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself and themselves against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds
<PAGE>
72
held or collected by the Trustee as such, except funds held in trust for the
payment of principal of, premium, if any, or interest on particular Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in 7.01, the expenses (including
the reasonable fees and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable bankruptcy, insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07 and any
lien arising hereunder shall survive the resignation or removal of any Trustee,
the discharge of the Company's obligations pursuant to Article Eleven of this
Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the
----------------------------------------
Trustee has or shall acquire a conflicting interest within the meaning of
Section 310 of the Trust Indenture Act, the Trustee shall either eliminate such
conflicting interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To
the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed
to have a conflicting interest with respect to the indentures relating to
Existing Subordinated Indebtedness or to the Securities of any series by virtue
of being Trustee with respect to the Securities of any particular series of
Securities other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There shall
----------------------------------------
at all times be a Trustee with respect to each series of Securities hereunder
which shall be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000, subject to supervision or
examination by Federal or State authority; provided, however, that if Section
-------- -------
310(a) of the Trust Indenture Act or the rules and regulations of the Commission
under the Trust Indenture Act at any time permit a corporation organized and
doing business under the laws of any other jurisdiction to serve as trustee of
an indenture qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation
<PAGE>
73
organized and doing business under the laws of any such jurisdiction to serve as
Trustee hereunder. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor. (i)
--------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities
at any time by giving written notice thereof to the Company. If an instrument
of acceptance by a successor Trustee shall not have been delivered to the
resigning Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with respect to
any series of Securities after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security of such series
for at least six months;
(b) the Trustee shall cease to be eligible under Section 8.09 with
respect to any series of Securities and shall fail to resign after written
request therefor
<PAGE>
74
by the Company or by any Holder of Securities of such series; or
(c) the Trustee shall become incapable of acting with respect to any
series of Securities 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, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such 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 with respect to such series.
(v) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 8.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee with respect to such series, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been A bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
<PAGE>
75
the appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment for the Securities of such series located
outside the United States. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Principal Corporate Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In the
---------------------------------------
case of the appointment hereunder of a successor Trustee with respect to any
series of Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective with respect to all or any series as to
which it is resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to all or any
such series; but, on request of the Company or such successor Trustee, such
retiring Trustee shall upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of such retiring Trustee with respect to all or any such series; and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to all or any
such series, subject nevertheless to its lien, if any, provided in Section 8.07.
(ii) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all
<PAGE>
76
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (b) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (c) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such 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; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject
nevertheless to its lien, if any, provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to such series under this
Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business of Trustee. Any corporation into which the Trustee may be merged or
- --------------------
converted or with which
<PAGE>
77
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; provided that such
corporation 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. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims Against Company. If
--------------------------------------------------
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
Section 311 of the Trust Indenture Act regarding the collection of any claims as
a creditor against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The Trustee may
-------------------------------------
appoint an Authenticating Agent or Agents, which may include any Affiliate of
the Company, with respect to one or more series of Securities. Such
Authenticating Agent or Agents at the option of the Trustee shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series issued
upon original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Whenever reference
is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication or the delivery of
Securities to the Trustee for authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent, a certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent and delivery of Securities to the
Authenticating Agent on behalf of the Trustee. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of
<PAGE>
78
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $5,000,000 and subject to
supervision or examination by Federal or State authority. Notwithstanding the
foregoing, an Authenticating Agent located outside the United States may be
appointed by the Trustee if previously approved in writing by the Company and if
such Authenticating Agent meets the minimum capitalization requirements of this
Section 8.14. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
--------
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
(and upon request by the Company shall) terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
<PAGE>
79
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ], as Trustee,
by
_____________________________
as Authenticating Agent
by
_____________________________
Authorized Signatory
ARTICLE NINE
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
---------------------------------------------------
Without the consent of any Holder of any Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or Person to
the Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one or
more series of Securities 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 Section 8.11; or
<PAGE>
80
(iii) to add to the covenants of the Company, for the benefit of the
Holders of Securities of all or any series of Securities or coupons (and if
such covenants are to be for the benefit of less than all series of
Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any right
or power herein conferred upon the Company; or
(iv) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under the Indenture; provided that such action shall not adversely affect
--------
the interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(v) to add any additional Defaults or Events of Default with respect
to all or any series of the Securities (and, if such Default or Event of
Default is applicable to less than all series of Securities, specifying the
series to which such Default or Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any) or any interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form; provided any such action
--------
shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(vii) to add to, change or eliminate any of the provisions of this
Indenture, provided that any such addition, change or elimination (a) shall
become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision or
(b) shall not apply to any Securities Outstanding; or
<PAGE>
81
(viii) to establish the form or terms of Securities of any series as
permitted by Sections 2.02 and 3.01; or
(ix) to add to or change any provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by the
terms thereof; or
(xi) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; provided such action shall not
--------
adversely affect the interest of Holders of Securities of any series or any
appurtenant coupons in any material respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders. With
------------------------------------------------
the consent of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture or indentures (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series and any related coupons under this Indenture; provided, however, that no
-------- -------
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(i) change the Maturity of the principal of, or the Stated Maturity of
any installment of interest (or premium, if any) on, any Security, or
reduce the principal amount thereof or any premium thereon or the rate of
interest thereon, or change the obligation of the Company to pay additional
amounts pursuant to Section 5.04 (except as contemplated by Section
10.01(i) and permitted by Section 9.01), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 7.02, or change the method of calculating interest thereon or
the coin or currency in which any Security (or premium, if any, thereon) or
the interest thereon is payable, or reduce the minimum rate
<PAGE>
82
of interest thereon, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date);
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required for
any waiver of certain defaults hereunder and their consequences provided
for in this Indenture or reduce the requirements of Section 16.04 for a
quorum;
(iii) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived.
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 Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
-------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
8.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
and complies with this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, liabilities, duties or immunities under this Indenture or otherwise.
<PAGE>
83
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution
----------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
------------------------------------
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
SECTION 9.07. Subordination Unimpaired. No supplemental indenture
-------------------------
executed pursuant to this Article shall directly or indirectly modify the
provisions of Article Fourteen in any manner which might alter the subordination
of the Securities.
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
---------------------------------------------
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms.
-----------------------------------------------------
The Company shall not consolidate with or merge into any other corporation or
convey or transfer its properties and assets substantially as an entirety to any
Person, unless:
(i) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, premium, if any, and
<PAGE>
84
interest (including all additional amounts, if any, payable pursuant to
Section 5.04) on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no Default,
and no event which, after notice or lapse of time, or both, would become a
Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger, conveyance or transfer and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any
----------------------------------
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
10.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein. In the event of any such conveyance or
transfer, the Company as the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and may be dissolved, wound up
and liquidated at any time thereafter.
ARTICLE ELEVEN
Satisfaction and Discharge
--------------------------
SECTION 11.01. Satisfaction and Discharge of Indenture. This
----------------------------------------
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly provided
for and rights to receive payments thereon and any right to receive additional
amounts, as provided in Section 5.04), and the Trustee, on receipt of a Company
Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(i) either:
<PAGE>
85
(a) all Securities theretofore authenticated and delivered (other
than (1) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has not been waived as provided in
Section 3.05, (2) coupons appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 4.06, (3) coupons
appertaining to Bearer Securities surrendered for repayment pursuant
to Section 15.03 and maturing after the Repayment Date, whose
surrender has been waived as provided in Section 15.03, (4) Securities
and coupons which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.06, and (5) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
5.03) have been delivered to the Trustee for cancellation; or
(b) all such Securities not theretofore delivered to the Trustee
for cancellation:
(1) have become due and payable, or
(2) will become due and payable at their Maturity within one
year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (b) (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for the
purpose, an amount (said amount to be immediately due and payable to the
Holders) sufficient to pay and discharge the entire indebtedness on such
Securities and coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest to the date of
such deposit (in the case of Securities which have become due and payable),
or to the Maturity or Redemption Date, as the case may be;
<PAGE>
86
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive. The Trustee may give notice at the
Company's expense to the Holders of Securities Outstanding of the immediate
availability of the amount referred to in clause (i) of this Section 11.01.
Funds held pursuant to this Section shall not be subject to the provisions of
Article Fourteen.
SECTION 11.02. Application of Trust Money. Subject to the provisions
---------------------------
of the last paragraph of Section 5.03, all money deposited with the Trustee
pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying Agent is
--------------
unable to apply any money in accordance with Section 11.02 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 until such time as the Trustee or any Paying Agent is permitted to
apply all such money in accordance with Section 11.02.
<PAGE>
87
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
----------------------------------------
Officers and Directors
----------------------
SECTION 12.01. Exemption from Individual Liability. No recourse
------------------------------------
under or upon any obligation, covenant or agreement of this Indenture, or of any
Security or coupon, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through 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 this Indenture and the
obligations issued hereunder are solely corporate obligations of the Company,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or coupons or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Securities.
ARTICLE THIRTEEN
Sinking Funds
-------------
SECTION 13.01. Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment",
<PAGE>
88
and any payment in excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 13.02. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
------------------------------------------------------
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto and (ii) may
apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
--------
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not less
------------------------------------------
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee and the Security Registrar
an Officers' Certificate specifying (i) the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, (ii) the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 13.02, and (iii) that none of such
Securities has theretofore been so credited and stating the basis for such
credit, and will also deliver to the Trustee any Securities to be so delivered.
Not less than 30 days before each sinking fund payment date the Security
Registrar shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 4.03 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 4.04. Such notice having been duly
<PAGE>
89
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 4.06 and 4.07 and shall be subject to Section 4.08.
ARTICLE FOURTEEN
Subordination of Securities
---------------------------
SECTION 14.01. Agreement To Subordinate. The Company, for itself,
-------------------------
its successors and assigns, covenants and agrees, and each Holder of a Security
by his acceptance thereof, likewise covenants and agrees, that the payment of
the principal and premium, if any, and interest on each and all of the
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness and, subject to the provisions of Section 14.09, General
Obligations of the Company.
SECTION 14.02. Distribution on Dissolution, Liquidation and
--------------------------------------------
Reorganization; Subrogation of Securities. Upon any distribution of assets of
- ------------------------------------------
the Company upon any dissolution, winding up, liquidation or reorganization of
the Company, whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or otherwise (subject
to the power of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon the Senior
Indebtedness and the holders thereof with respect to the Securities and the
Holders thereof (and, upon the General Obligations and the creditors in respect
thereof with respect to the Securities and the Holders thereof) by a lawful plan
of reorganization under applicable bankruptcy law):
(i) the holders of all Senior Indebtedness shall first be entitled
to receive payment in full in accordance with the terms of such Senior
Indebtedness of the principal thereof, premium, if any, and the interest
due thereon (including interest accruing subsequent to the commencement of
any proceeding for the bankruptcy or reorganization of the Company under
any applicable bankruptcy, insolvency, or similar law now or hereafter in
effect) before the Holders of the Securities are entitled to receive any
payment upon the principal of or premium, if any, or interest on
indebtedness evidenced by the Securities;
<PAGE>
90
(ii) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders
of the Securities or the Trustee would be entitled except for the
provisions of this Article Fourteen, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other indebtedness of the Company being subordinated to the payment
of the Securities, shall be paid by the liquidating trustee or agent or
other person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have been
issued, in accordance with the priorities then existing among holders of
Senior Indebtedness for payment of the aggregate amounts remaining unpaid
on account of the principal of and premium, if any, and interest (including
interest accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Company under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect) on the
Senior Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness; it being understood that if the Holders of
Securities shall fail to file a proper claim in the form required by any
proceeding referred to in this subparagraph (ii) prior to 30 days before
the expiration of the time to file such claim or claims, then the holders
of Senior Indebtedness are hereby authorized to file an appropriate claim
or claims for and on behalf of the Holders of Securities in the form
required in any such proceeding (as are the creditors in respect of General
Obligations in the event Section 14.09 is applicable); and
(iii) 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, including any such payment or distribution
which may be payable or deliverable by reason of the payment of any other
indebtedness of the Company being subordinate to the payment of the
Securities, shall be received by the Trustee or Holders of the Securities
before all Senior Indebtedness is paid in full, such payment or
distribution shall be
<PAGE>
91
held in trust for the benefit of and shall be paid over to the holders of
such Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably as
aforesaid, for application to the payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of and premium, if any, and interest on the Securities shall
be paid in full and no such payments or distributions to holders of such Senior
Indebtedness to which the Holders of the Securities would be entitled except for
the provisions hereof of cash, property or securities otherwise distributable to
the Senior Indebtedness shall, as between the Company, its creditors, other than
the holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment by the Company to or on account of the Securities. It is
understood that the provisions of this Article Fourteen are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Indebtedness (and, in the
case of Section 14.09, the Holders of the Securities, on the one hand, and
creditors in respect of General Obligations) on the other hand. Nothing
contained in this Article Fourteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its
creditors, other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and absolute
(and which, subject to the rights under this Article Fourteen of the holders of
the Senior Indebtedness and the rights under Section 14.09 of creditors in
respect of General Obligations, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms or to affect
<PAGE>
92
the relative rights of the Holders of the Securities and creditors of the
Company, other than the holders of the Senior Indebtedness and creditors in
respect of General Obligations, nor shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon Default under this Indenture, subject
to the rights, if any, under this Article Fourteen of the holders of Senior
Indebtedness and under Section 14.09 of creditors in respect of General
Obligations 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 Fourteen, the Trustee, subject
to the provisions of Section 8.01, and the Holders of the Securities shall be
entitled to rely upon any order or decree of a court of competent jurisdiction
in which such dissolution, winding up, liquidation or reorganization proceedings
are pending or upon a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders of the
Securities for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company and the creditors in respect of General Obligations,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Fourteen. In
the absence of any such liquidating trustee, agent or other person, the Trustee
shall be entitled to rely upon a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee or representative on behalf
of such holder) or a creditor in respect of General Obligations as evidence that
such Person is a holder of Senior Indebtedness (or is such a trustee or
representative) or a creditor in respect of General Obligations, as the case may
be. 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
Senior Indebtedness or a creditor in respect of General Obligations, to
participate in any payment or distribution pursuant to this Section or Section
14.09, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness or General
Obligations held by such Person, as to the extent to which such Person is
entitled to participation in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Section or Section 14.09, 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.
<PAGE>
93
The obligations of the Company in respect of the Securities shall rank
on a parity with the Existing Subordinated Indebtedness and any other
obligations of the Company ranking on a parity with the Securities.
With respect to the holders of Senior Indebtedness or creditors in
respect of General Obligations, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically set forth in this
Article, and no implied covenants or obligations with respect to the holders of
Senior Indebtedness or creditors in respect of General Obligations shall be read
into this Indenture against the Trustee. The Trustee, however, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness or
creditors in respect of General Obligations, and shall not be liable to any such
holders or creditors if it shall mistakenly pay over or distribute to or on
behalf of Holders of Securities or the Company moneys or assets to which any
holders of Senior Indebtedness or creditors in respect of General Obligations
shall be entitled by virtue of this Article Fourteen.
SECTION 14.03. Payments on Securities Prohibited During Event of
-------------------------------------------------
Default under Senior Indebtedness. In the event and during the continuation of
- ----------------------------------
any default in the payment of principal of, or premium, if any, or interest on,
any Senior Indebtedness beyond any applicable period of grace, or in the event
that any event of default with respect to any Senior Indebtedness shall have
occurred and be continuing, or would occur as a result of the payment referred
to hereinafter, permitting the holders of such Senior Indebtedness (or a trustee
on behalf of the holders thereof) to accelerate the maturity thereof, then,
unless and until such default or event of default shall have been cured or
waived or shall have ceased to exist, no payment of principal of, or premium or
interest on the Securities, or in respect of any redemption, retirement,
purchase or other acquisition of any of the Securities, shall be made by the
Company.
SECTION 14.04. Payments on Securities Permitted. Nothing contained in
---------------------------------
this Indenture or in any of the Securities shall (i) impair, as between the
Company and Holders of Securities, the obligation of the Company to make, or
prevent the Company from making, at any time except as provided in Sections
14.02, 14.03, 14.08 and 14.09, payments of principal of or premium, if any, or
interest (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect) on
the Securities,
<PAGE>
94
as and when the same shall become due and payable in accordance with the terms
of the Securities, (ii) affect the relative rights of the Holders of the
Securities and creditors of the Company other than the holders of the Senior
Indebtedness of the Company and the creditors in respect of General Obligations,
(iii) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default thereunder, subject
to the rights, if any, under Article Fourteen of the holders of Senior
Indebtedness and the creditors in respect of General Obligations in respect of
cash, property or securities of the Company received upon the exercise of such
remedy, or (iv) prevent the application by the Trustee or any Paying Agent of
any moneys deposited with it hereunder to the payment of or on account of the
principal of or premium, if any, or interest on the Securities or prevent the
receipt by the Trustee or any Paying Agent of such moneys, if, prior to the
second Business Day prior to such deposit, the Trustee or such Paying Agent did
not have written notice of any event prohibiting the making of such deposit by
the Company.
SECTION 14.05. Authorization of Holders to Trustee To Effect
---------------------------------------------
Subordination. Each Holder of a Security by his acceptance thereof authorizes
- --------------
and directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article Fourteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Notice to Trustee. Notwithstanding
------------------
the provisions of this Article or any other provisions of this Indenture, but
subject to Section 14.04 hereof, neither the Trustee nor any Paying Agent shall
be charged with knowledge of the existence of any Senior Indebtedness or General
Obligations or of any event which would prohibit the making of any payment of
moneys to or by the Trustee or such Paying Agent, unless and until the Trustee
or such Paying Agent shall have received written notice thereof from the Company
or from the holder of any Senior Indebtedness or from the representative of any
such holder or from any creditor in respect of General Obligations.
SECTION 14.07. Right of Trustee To Hold Senior Indebtedness or
-----------------------------------------------
General Obligations. The Trustee shall be entitled to all of the rights set
- --------------------
forth in this Article in respect of any Senior Indebtedness or General
Obligation at any time held by it in its individual capacity to the same extent
as any other holder of such Senior Indebtedness or creditor in respect of such
General Obligation and nothing
<PAGE>
95
in this Indenture shall be construed to deprive the Trustee of any of its rights
as such holder or creditor.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 8.07.
SECTION 14.08. Article Fourteen Not To Prevent Defaults or Events of
-----------------------------------------------------
Default. The failure to make a payment pursuant to the Securities by reason of
- --------
any provision in this Article shall not be construed as preventing the
occurrence of a Default or an Event of Default.
SECTION 14.09. Securities To Rank Pari Passu with Existing
-------------------------------------------
Subordinated Indebtedness; Payment of Proceeds in Certain Cases. (i) Subject
- ----------------------------------------------------------------
to the provisions of this Section and to any provisions established or
determined with respect to Securities of any series pursuant to Section 3.01,
the Securities shall rank pari passu in right of payment with the Existing
Subordinated Indebtedness.
(ii) Upon the occurrence of any of the events specified in the first
paragraph of Section 14.02, the provisions of that Section and the
corresponding provisions of each indenture or other instrument or document
establishing or governing the terms of any Existing Subordinated
Indebtedness shall be given effect on a pro rata basis to determine the
amount of cash, property or securities which may be payable or deliverable
as between the holders of Senior Indebtedness, on the one hand, and the
Holders of the Securities and holders of Existing Subordinated
Indebtedness, on the other hand.
(iii) If, after giving effect to the provisions of Section 14.02, and
the respective corresponding provisions of each indenture or other
instrument or document establishing or governing the terms of any Existing
Subordinated Indebtedness on such pro rata basis, any amount of cash,
property or securities shall be available for payment or distribution in
respect of the Securities ("Excess Proceeds"), and any creditors in respect
of General Obligations shall not have received payment in full of all
amounts due or to become due on or in respect of such General Obligations
(and provision shall not have been made for such payment in money or
money's worth), then such Excess Proceeds shall first be applied (ratably
with any amount of cash, property or securities available for payment or
distribution in respect of any other
<PAGE>
96
indebtedness of the Company that by its express terms provides for the
payment over of amounts corresponding to Excess Proceeds to creditors in
respect of General Obligations) to pay or provide for the payment of the
General Obligations remaining unpaid, to the extent necessary to pay all
General Obligations in full, after giving effect to any concurrent payment
or distribution to or for creditors in respect of General Obligations. Any
Excess Proceeds remaining after payment (or provision for payment) in full
of all General Obligations shall be available for payment or distribution
in respect of the Securities.
(iv) In the event that, notwithstanding the foregoing provisions of
subsection (iii) of this Section, the Trustee or Holder of any Security
shall, in the circumstances contemplated by such subsection, have received
any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, before all General
Obligations are paid in full or payment thereof duly provided for, and if
such fact shall, at or prior to the time of such payment or distribution
have been made known to the Trustee or, as the case may be, such Holder,
then and in such event, subject to any obligation that the Trustee or such
Holder may have pursuant to Section 14.02, such payment or distribution
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of the Company for payment in
accordance with subsection (iii).
(v) Subject to the payment in full of all General Obligations, the
Holder of the Securities shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company that by its express terms
provides for the payment over of amounts corresponding to Excess Proceeds
to creditors in respect of General Obligations and is entitled to like
rights of subrogation) to the rights of the creditors in respect of General
Obligations to receive payments or distributions of cash, property or
securities applicable to the General Obligations until the principal of and
interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to creditors in respect of
General Obligations of any cash, property or securities to which Holders of
the Securities or the Trustee would be entitled except for the provisions
of this Section, and no payments over pursuant to the provisions of this
<PAGE>
97
Section to creditors in respect of General Obligations by Holders of
Securities or the Trustee, shall, as among the Company, its creditors
(other than creditors in respect of General Obligations) and the Holders of
Securities be deemed to be a payment or distribution by the Company to or
on account of the Securities.
(vi) The provisions of subsections (iii), (iv) and (v) of this
Section are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and the
creditors in respect of General Obligations, on the other hand, after
giving effect to the rights of the holders of Senior Indebtedness, as
provided in this Article. Nothing contained in subsections (iii), (iv) and
(v) of this Section is intended to or shall affect the relative rights
against the Company of the Holders of the Securities and (a) the holders of
Senior Indebtedness, (b) the holders of Existing Subordinated Indebtedness
or (c) other creditors of the Company other than creditors in respect of
General Obligations.
ARTICLE FIFTEEN
Repayment at the Option of Holders
----------------------------------
SECTION 15.01. Applicability of Article. Securities of any series
-------------------------
which are repayable at the option of the Holders thereof before their Stated
Maturity shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Securities of such series) in accordance
with this Article.
SECTION 15.02. Repayment of Securities. Each Security which is
------------------------
subject to repayment in whole or in part at the option of the Holder thereof on
a Repayment Date shall be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 15.03. Exercise of Option, Notice. Each Holder desiring to
---------------------------
exercise such Holder's option for repayment shall, as conditions to such
repayment, surrender the Security to be repaid in whole or in part together with
written notice of the exercise of such option at any office or agency of the
Company in a Place of Payment, not less than 30 nor more than 45 days prior to
the Repayment Date; provided, however, that surrender of Bearer Securities
-------- -------
together with written notice of exercise of such option shall be made at an
office or agency located outside the
<PAGE>
98
United States except as otherwise provided in Section 5.02. Such notice, which
shall be irrevocable, shall specify the principal amount of such Security to be
repaid, which shall be equal to the minimum authorized denomination for such
Security or an integral multiple thereof, and shall identify the Security to be
repaid and, in the case of a partial repayment of the Security, shall specify
the denomination or denominations of the Security or Securities of the same
series to be issued to the Holder for the portion of the principal of the
Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
-------- -------
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series and tenor
of any authorized denomination specified in the foregoing notice, in an
aggregate principal amount equal to any portion of the principal of the
Registered Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series and tenor of any
authorized denomination or denominations specified in the foregoing notice, in
an aggregate principal amount equal to any portion of the principal of the
Security so surrendered which is not to be repaid; provided, however, that the
-------- -------
issuance of a Registered Security therefor shall be subject to applicable laws
and
<PAGE>
99
regulations, including provisions of the United States Federal income tax laws
and regulations in effect at the time of the exchange; neither the Company, the
Trustee nor the Security Registrar shall issue Registered Securities for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
issuance the Company would suffer adverse consequences under the United States
Federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such issuances
thereafter unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Order to the
Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Securities shall relate, in the case
of any Security repaid or to be repaid only in part, to the portion of the
principal of such Security which has been or is to be repaid.
SECTION 15.04. Election of Repayment by Remarketing Entities. The
----------------------------------------------
Company may elect, with respect to Securities of any series which are repayable
at the option of the Holders thereof before their Stated Maturity, at any time
prior to any Repayment Date to designate one or more Remarketing Entities to
purchase, at a price equal to the Repayment Price, Securities of such series
from the Holders thereof who give notice and surrender their Securities in
accordance with Section 15.03.
SECTION 15.05. Securities Payable on the Repayment Date. Notice of
-----------------------------------------
exercise of the option of repayment having been given and the Securities so to
be repaid having been surrendered as aforesaid, such Securities shall, unless
purchased in accordance with Section 15.04, on the Repayment Date become due and
payable at the price therein specified and from and after the Repayment Date
such Securities shall cease to bear interest and shall be paid on the Repayment
Date, and the coupons for such interest appertaining to Bearer Securities so to
be repaid, except to the extent provided above, shall be void, unless the
Company shall default in the payment of such price, in which case the Company
shall continue to be obligated for the principal amount of such Securities and
shall be obligated to pay interest on such principal amount at the rate
prescribed therefor by such Securities from time to time until payment in full
of such principal amount.
<PAGE>
100
ARTICLE SIXTEEN
Meetings of Holders of Securities
---------------------------------
SECTION 16.01. Purposes for Which Meetings May Be Called. If
------------------------------------------
Securities of a series are issuable in whole or in part as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other Act provided
by this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 16.02. Call, Notice and Place of Meetings. (i) The Trustee
-----------------------------------
may at any time call a meeting of Holders of Securities of any series issuable
in whole or in part as Bearer Securities for any purpose specified in Section
16.01, to be held at such time and at such place in the City of Memphis,
Tennessee, the Borough of Manhattan, The City of New York, or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any 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 given, in the
manner provided in Section 1.06, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any such series shall have requested the Trustee to call a meeting of the
Holders of Securities of such series for any purpose specified in Section 16.01,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Memphis, Tennessee, the Borough of Manhattan, The City of New York, or in
London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (i) of this Section.
SECTION 16.03. Persons Entitled To Vote at Meetings. To be entitled
-------------------------------------
to vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2)
<PAGE>
101
a Person appointed by an instrument in writing as proxy for a Holder or Holders
of one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 16.04. Quorum, Action. The Persons entitled to vote a
---------------
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
- -------- -------
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of a greater percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such greater
percentage in principal amount of the Outstanding Securities of such series
shall 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 Holders of Securities of such series, be dissolved. In the absence
of a quorum in any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairperson 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 chairperson 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 16.02(i), 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 Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the provisos to 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 only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02, any
- -------- -------
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a greater percentage in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned
<PAGE>
102
meeting duly reconvened and at which a quorum is present as aforesaid only by
the affirmative vote of the Holders of such greater percentage in principal
amount of the Outstanding Securities of that series; and provided further that,
----------------
except as limited by the provisos to Section 9.02, any resolution with respect
to any request, demand, authorization, direction, notice, consent, waiver or
other Act which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority in
principal amount of the Outstanding 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 by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 16.05. Determination of Voting Rights; Conduct and
------------------------------ -----------
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
- ------------------------
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of such series in regard to
proof of the holding of Securities of such series 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 deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 1.04 and the appointment of any proxy shall be proved in
the manner specified in Section 1.04 or, in the case of Bearer Securities, by
having the signature of the person executing the proxy witnessed or guaranteed
by any trust company, bank or banker authorized by Section 1.04 to certify to
the holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting,unless the meeting shall have been called
by the Company or by Holders of Securities as provided in
<PAGE>
103
Section 16.02(ii), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner appoint a
temporary chairperson. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in any composite currency or a Foreign Currency) of Securities of
such series held or represented by him; provided, however, that no vote shall be
-------- -------
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairperson of the meeting not to be Outstanding.
The chairperson of the meeting shall have no right to vote, except as a Holder
of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 16.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 16.06. Counting Votes and Recording Action of Meetings. The
------------------------------------------------
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series 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 given as provided in Section 16.02 and, if
applicable, Section 16.04. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the
<PAGE>
104
meeting and one such copy shall be delivered to the Company, and another 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.
ARTICLE SEVENTEEN
Miscellaneous
-------------
SECTION 17.01. 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.
The Bank of New York hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
<PAGE>
105
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
NATIONAL COMMERCE BANCORPORATION,
by
____________________________
Attest:
________________________ [CORPORATE SEAL]
The Bank of New York Trustee,
by
_____________________
[CORPORATE SEAL]
<PAGE>
106
STATE OF ,)
) ss.:
COUNTY OF )
On this day of [ ], 1999, before me
personally came to me known, , who, being by me duly sworn,
did depose and say that he resides at
; that he is [ ] of NATIONAL COMMERCE BANCORPORATION, one of the
corporations described in and which executed the foregoing instrument; that he
knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
________________________________
Notary Public
[Notarial Seal]
<PAGE>
107
STATE OF ,)
) ss.:
COUNTY OF ,)
On this day of [ ], 1999 before me personally
appeared , to me known, who, being by me duly sworn, did
depose and say that he resides at [ ]; that he is
a [ ]of [ ], one of the parties
described in and which executed the foregoing instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
______________________________
Notary Public
[Notarial Seal]
<PAGE>
[NCBC LEGAL DEPARTMENT LETTERHEAD]
Exhibit 5.1 and 23.2
April 16, 1999
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: National Commerce Bancorporation; Registration Statement on Form S-3
--------------------------------------------------------------------
Ladies and Gentlemen:
I am Vice President and General Counsel of National Commerce
Bancorporation, a Tennessee corporation (the "Company"), and in such capacity,
I, or members of my staff subject to my supervision, have represented the
Company in connection with the preparation of the Company's Registration
Statement on Form S-3 being filed with the Securities and Exchange Commission
(the "Registration Statement") on the date of this opinion. The Registration
Statement relates to (i) debt securities, which may be either senior securities
(the "Senior Securities") or subordinated securities (the "Subordinated
Securities") (collectively, the "Debt Securities"), and either of which may be
convertible into or exchangeable for shares of the Company's common stock, $2.00
par value per share (the "Common Stock"), for shares of the Company's preferred
stock (the "Preferred Stock"), or other Debt Securities; (ii) shares of
Preferred Stock, which may be convertible into shares of Common Stock or
exchangeable for Debt Securities; and (iii) shares of Common Stock. The Debt
Securities, shares of Preferred Stock and shares of Common Stock are referred to
herein as the "Offered Securities".
The Offered Securities will be sold or delivered from time to time as
set forth in the Registration Statement, an amendment thereto, the prospectus
contained therein (the "Prospectus") and supplements to the Prospectus (the
"Prospectus Supplement"). The Senior Securities will be issued under an
Indenture, dated as of April 16, 1999, between the Company and The Bank of New
York, as trustee (the "Senior Indenture"). The Subordinated Securities will be
issued under an Indenture, dated as of April 16, 1999, between the Company and
The Bank of New York, as trustee (the "Subordinated Indenture"). The Senior
Indenture and Subordinated Indenture are exhibits to the Registration Statement.
<PAGE>
Securities and Exchange Commission
April 16, 1999
Page 2
I am a member of the Bar of the State of Tennessee and I do not
express any opinion herein concerning any law other than the law of the State of
Tennessee. Insofar as this opinion pertains to matters governed by the laws of
the State of New York and the federal law of the United States of America, I
have relied upon the opinion, dated the date hereof, of King & Spalding, a copy
of which is an exhibit to the Registration Statement.
I have reviewed such corporate records and other documents and have
made such further examinations and inquiries as I deemed necessary to enable me
to express the opinions set forth herein.
Based on the foregoing, and subject to the qualifications and
limitations stated herein, it is my opinion that:
(i) upon the issuance, authentication and delivery of the Debt
Securities in accordance with the provisions of the applicable Senior
Indenture or Subordinated Indenture, as the case may be, against
payment therefor, the Debt Securities will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and by
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(ii) upon designation of the preferences and relative,
participating, optional and other rights, and qualifications,
limitations or restrictions of the Preferred Stock by the Company's
Board of Directors or by a duly authorized committee thereof, and
thereafter upon proper filing with the Secretary of State of the State
of Tennessee of an Amendment to its Restated Charter relating to the
Preferred Stock and when such shares of Preferred Stock are issued and
sold as contemplated in the Registration Statement and in accordance
with their respective terms, such shares of Preferred Stock will be
legally issued, fully paid and nonassessable; and
(iii) when issued as contemplated in the Registration
Statement and in accordance with its terms and, if applicable, the
terms of the Debt Securities or Preferred Stock that are convertible
or exchangeable, as the case may be, into such shares of Common Stock,
the shares of the Common Stock will be legally issued, fully paid and
nonassessable.
<PAGE>
Securities and Exchange Commission
April 16, 1999
Page 3
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name whenever it appears in such
Registration Statement, including the Prospectus and any Prospectus Supplement
constituting a part hereof, as originally filed or as subsequently amended.
Sincerely,
Charles A. Neale
Vice President and General Counsel
<PAGE>
[KING & SPALDING LETTERHEAD]
404/572-4676 404/572-5147
Exhibit 5.2 and 23.3
April 16, 1999
National Commerce Bancorporation
One Commerce Square
Memphis, TN 38150
Attn: Mr. Charles A. Neale
Re: National Bancorporation; Registration Statement on Form S-3
-----------------------------------------------------------
Ladies and Gentlemen:
We served as special counsel to National Commerce Bancorporation, a
Tennessee corporation (the "Company"), in connection with the preparation of
Company's Registration Statement on Form S-3 being filed with the Securities and
Exchange Commission (the "Registration Statement") on the date of this opinion.
The Registration Statement relates to (i) debt securities, which may be either
senior securities (the "Senior Securities") or subordinated securities (the
"Subordinated Securities") (collectively, the "Debt Securities"), and either of
which may be convertible into or exchangeable for shares of the Company's common
stock, $2.00 par value per share (the "Common Stock"), for shares of the
Company's preferred stock (the "Preferred Stock"), or other Debt Securities;
(ii) shares of Preferred Stock, which may be convertible into shares of Common
Stock or exchangeable for Debt Securities; and (iii) shares of Common Stock.
The Debt Securities, shares of Preferred Stock and shares of Common Stock are
referred to herein as the "Offered Securities".
The Offered Securities will be sold or delivered from time to time as
set forth in the Registration Statement, an amendment thereto, the prospectus
contained therein (the "Prospectus") and supplements to the Prospectus (the
"Prospectus Supplement"). The Senior Securities will be issued under an
Indenture, dated as of April 16, 1999, between the Company and The Bank of New
York, as trustee (the "Senior Indenture"). The Subordinated Securities will be
issued under an Indenture, dated as of April 16, 1999, between the Company and
The Bank of New York, as trustee (the "Subordinated Indenture"). The Senior
Indenture and Subordinated Indenture are exhibits to the Registration Statement.
<PAGE>
Securities and Exchange Commission
April 16, 1999
Page 2
We have reviewed such corporate records and other documents and have
made such further examinations and inquiries as we have deemed necessary to
enable us to express the opinions set forth herein.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States.
Based on the foregoing, and subject to the qualifications and
limitations stated herein, it is our opinion that:
(i) upon the issuance, authentication and delivery of the Debt
Securities in accordance with the provisions of the applicable Senior
Indenture or Subordinated Indenture, as the case may be, against
payment therefor, the Debt Securities will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and by
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity);
(ii) upon designation of the preferences and relative,
participating, optional and other rights, and qualifications,
limitations or restrictions of the Preferred Stock by the Company's
Board of Directors or by a duly authorized committee thereof, and
thereafter upon proper filing with the Secretary of State of the State
of Tennessee of an Amendment to its Restated Charter relating to the
Preferred Stock and when such shares of Preferred Stock are issued and
sold as contemplated in the Registration Statement and in accordance
with their respective terms, such shares of Preferred Stock will be
legally issued, fully paid and nonassessable; and
(iii) when issued as contemplated in the Registration
Statement and in accordance with its terms and, if applicable, the
terms of the Debt Securities or Preferred Stock that are convertible
or exchangeable, as the case may be, into such shares of Common Stock,
the shares of the Common Stock will be legally issued, fully paid and
nonassessable.
<PAGE>
Securities and Exchange Commission
April 16, 1999
Page 3
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name whenever it appears in such
Registration Statement, including the Prospectus and any Prospectus Supplement
constituting a part hereof, as originally filed or as subsequently amended.
Sincerely,
KING & SPALDING
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 12.1 - STATEMENT RE: COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In Thousands)
Year Ended December 31,
-------------------------------------------------------------
1998 1997 1996 1995 1994
=============================================================
<S> <C> <C> <C> <C> <C>
Consolidated pretax income from
continuing operations 127,586 104,753 87,092 72,313 65,310
Interest 194,328 176,807 151,101 126,440 85,099
Interest portion of rent expense 2,308 2,066 1,939 1,742 1,599
Net amortization of debt discount and
issuance expense 230 269 62 n/a n/a
-------------------------------------------------------------
Earnings 324,452 283,895 240,194 200,495 152,008
=============================================================
Interest 194,328 176,807 151,101 126,440 85,099
Interest portion of rent expense 2,308 2,066 1,939 1,742 1,599
Net amortization of debt discount and
issuance expense 230 269 62 n/a n/a
-------------------------------------------------------------
Fixed Charges Including Interest
on Deposits 196,866 179,142 153,102 128,182 86,698
=============================================================
Interest on Deposits 134,186 119,159 107,965 96,691 63,080
-------------------------------------------------------------
Fixed Charges Excluding Interest
on Deposits 62,680 59,983 45,137 31,491 23,618
=============================================================
Ratio of Earnings to Fixed Charges
Including Deposits 1.65 1.58 1.57 1.56 1.75
-------------------------------------------------------------
Ratio of Earnings to Fixed Charges
Excluding Deposits 5.18 4.73 5.32 6.37 6.44
-------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit 23.1 - Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-00000) and related Prospectus of
National Commerce Bancorporation for the registration of its debt securities,
preferred stock and common stock, either separately or in units, in one or more
offerings up to a total of $300,000,000 and for the registration of 6,000,000
shares of its common stock for the selling shareholders and to the
incorporation by reference therein of our report dated February 19, 1999, with
respect to the consolidated financial statements of National Commerce
Bancorporation incorporated by reference in its Annual report (Form 10-K) for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Memphis, Tennessee
April 13, 1999
<PAGE>
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED PURSUANT TO RULE 901(d)
OF REGULATION S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
- --------------------------------------------------------------------------------
National Commerce Bancorporation
(Exact name of obligor as specified in its charter)
Tennessee 62-0784645
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One Commerce Square
Memphis, Tennessee 38150
(Address of principal executive offices) (Zip code)
______________________
Senior Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
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.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
</TABLE>
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
THIS CONFORMING PAPER DOCUMENT IS BEING SUBMITTED
PURSUANT TO RULE 901(d) OF REGULATION S-T
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 16th day of April, 1999.
THE BANK OF NEW YORK
By: /s/ Elizabeth T. Talley
--------------------------
Name: Elizabeth T. Talley
Title: Agent
-3-
<PAGE>
EXHIBIT 7 TO FORM T-1
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business December 31, 1998, published in accordance
with a call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
- ------ --------------
<S> <C>
Cash and balances due from
depository institutions:
Noninterest-bearing balances and
currency and coin................................................... $ 3,951,273
Interest-bearing balances........................................... 4,134,162
Securities:
Held-to-maturity securities......................................... 932,468
Available-for-sale securities....................................... 4,279,246
Federal funds sold and securities
purchased under agreements to resell................................ 3,161,626
Loans and lease financing receivables:
Loans and leases,
net of unearned income ..................................... 37,861,802
LESS: Allowance for loan and
lease losses ............................................... 619,791
LESS: Allocated transfer risk
reserve:..................................................... 3,572
Loans and leases, net of unearned
income and allowance and reserve............................. 37,238,439
Assets held in trading accounts......................................... 1,551,556
Premises and fixed assets (including
capitalized leases)................................................. 684,181
Other real estate owned................................................. 10,404
Investments in unconsolidated
subsidiaries and associated
companies........................................................ 196,032
Customers' liability to this bank on
acceptances outstanding.......................................... 895,160
Intangible assets....................................................... 1,127,375
Other assets............................................................ 1,915,742
-----------
Total assets............................................................ $60,077,664
-----------
</TABLE>
-4-
<PAGE>
LIABILITIES
- -----------
<TABLE>
<CAPTION>
Deposits:
<S> <C>
In domestic offices................................................. $27,020,578
Noninterest-bearing ................................................ 11,271,304
Interest-bearing ................................................... 15,749,274
In foreign offices, Edge and
Agreement subsidiaries, and IBFs................................. 17,197,743
Noninterest-bearing................................................. 103,007
Interest-bearing ................................................... 7,094,736
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:
Federal Funds Purchased............................................. 1,761,170
Demand notes issued to the U.S.
Treasury............................................................ 125,423
Trading liabilities..................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less......................... 1,903,700
With remaining maturity of more than
one year through three years..................................... 0
With remaining maturity of more than
three years...................................................... 31,639
Bank's liability on acceptances
executed and outstanding......................................... 900,390
Subordinated notes and debentures....................................... 1,308,000
Other liabilities....................................................... 2,708,852
-----------
Total liabilities....................................................... 54,583,127
-----------
EQUITY CAPITAL
- --------------
Common stock............................................................ 1,135,284
Surplus................................................................. 764,443
Undivided profits and capital
reserves............................................................ 3,542,168
Net unrealized holding gains (losses)
on available-for-sale securities.................................... 82,367
Cumulative foreign currency
translation adjustments............................................. (29,725)
-----------
Total equity capital.................................................... 5,494,537
Total liabilities and equity capital.................................... $60,077,664
-----------
</TABLE>
-5-
<PAGE>
I, Thomas J. Masiro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Masiro
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true and correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Allen R. Griffith )
-6-
<PAGE>
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED
PURSUANT TO RULE 901(d) OF REGULATION S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
- --------------------------------------------------------------------------------
National Commerce Bancorporation
(Exact name of obligor as specified in its charter)
Tennessee 62-0784645
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One Commerce Square
Memphis, Tennessee 38150
(Address of principal executive offices) (Zip code)
----------------------
Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
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.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------
Name Address
<S> <C>
- -----------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED
PURSUANT TO RULE 901(d) OF REGULATION S-T
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 16th day of April, 1999.
THE BANK OF NEW YORK
By: /s/ Elizabeth T. Talley
--------------------------
Name: Elizabeth T. Talley
Title: Agent
<PAGE>
EXHIBIT 7 TO FORM T-1
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business December 31, 1998, published in accordance
with a call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
- ------ --------------
<S> <C>
Cash and balances due from
depository institutions:
Noninterest-bearing balances and
currency and coin................................................... $ 3,951,273
Interest-bearing balances........................................... 4,134,162
Securities:
Held-to-maturity securities......................................... 932,468
Available-for-sale securities....................................... 4,279,246
Federal funds sold and securities
purchased under agreements to resell................................ 3,161,626
Loans and lease financing receivables:
Loans and leases,
net of unearned income ...................................... 37,861,802
LESS: Allowance for loan and
lease losses ................................................ 619,791
LESS: Allocated transfer risk
reserve:..................................................... 3,572
Loans and leases, net of unearned
income and allowance and reserve............................. 37,238,439
Assets held in trading accounts......................................... 1,551,556
Premises and fixed assets (including
capitalized leases)................................................. 684,181
Other real estate owned................................................. 10,404
Investments in unconsolidated
subsidiaries and associated
companies........................................................ 196,032
Customers' liability to this bank on
acceptances outstanding.......................................... 895,160
Intangible assets....................................................... 1,127,375
Other assets............................................................ 1,915,742
-----------
Total assets............................................................ $60,077,664
-----------
</TABLE>
-4-
<PAGE>
LIABILITIES
- -----------
<TABLE>
<CAPTION>
Deposits:
<S> <C>
In domestic offices................................................. $27,020,578
Noninterest-bearing ................................................ 11,271,304
Interest-bearing ................................................... 15,749,274
In foreign offices, Edge and
Agreement subsidiaries, and IBFs................................. 17,197,743
Noninterest-bearing................................................. 103,007
Interest-bearing ................................................... 7,094,736
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:
Federal Funds Purchased............................................. 1,761,170
Demand notes issued to the U.S.
Treasury............................................................ 125,423
Trading liabilities..................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less......................... 1,903,700
With remaining maturity of more than
one year through three years..................................... 0
With remaining maturity of more than
three years...................................................... 31,639
Bank's liability on acceptances
executed and outstanding......................................... 900,390
Subordinated notes and debentures....................................... 1,308,000
Other liabilities....................................................... 2,708,852
------------
Total liabilities....................................................... 54,583,127
------------
EQUITY CAPITAL
- --------------
Common stock............................................................ 1,135,284
Surplus................................................................. 764,443
Undivided profits and capital
reserves............................................................ 3,542,168
Net unrealized holding gains (losses)
on available-for-sale securities.................................... 82,367
Cumulative foreign currency
translation adjustments............................................. (29,725)
------------
Total equity capital.................................................... 5,494,537
------------
Total liabilities and equity capital.................................... $ 60,077,664
------------
</TABLE>
-5-
<PAGE>
I, Thomas J. Masiro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Masiro
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true and correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Allen R. Griffith )
-6-
