1
EXHIBIT 4.3
==============================================================================
UNION PLANTERS CORPORATION
as Issuer
INDENTURE
Dated as of December 12, 1996
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
SUBORDINATED DEBT SECURITIES
==============================================================================
2
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
December 12, 1996 among Union Planters Corporation, as Issuer, and The First
National Bank of Chicago, as Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1)................................................................... 6.09
(a)(2)..................................................................... 6.09
310(a)(3)................................................................... N.A.
(a)(4)..................................................................... N.A.
310(b)...................................................................... 6.08; 6.10(a)(b) and (d)
310(c)...................................................................... N.A.
311(a) and (b).............................................................. 6.13
311(c)...................................................................... N.A.
312(a)...................................................................... 4.01; 4.02(a)
312(b) and (c).............................................................. 4.02(b) and (c)
313(a)...................................................................... 4.04(a)
313(b)(1)................................................................... N.A.
313(b)(2)................................................................... 4.04(a)
313(c)...................................................................... 4.04(a)
313(d)...................................................................... 4.04(b)
314(a)...................................................................... 4.03
314(b)...................................................................... N.A.
314(c)(1) and (2)........................................................... 13.06
314(c)(3)................................................................... N.A.
314(d)...................................................................... N.A.
314(e)...................................................................... 13.06
314(f)...................................................................... N.A.
315(a)(c) and (d)........................................................... 6.01
315(b)...................................................................... 5.08
315(e)...................................................................... 5.09
316(a)(1)................................................................... 5.01; 5.07
316(a)(2)................................................................... Omitted
316(a) last sentence........................................................ 7.04
316(b)...................................................................... 5.04
317(a)...................................................................... 5.02
317(b)...................................................................... 3.04(a)
318(a)...................................................................... 13.08
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
3
TABLE OF CONTENTS
Page
----
Parties...........................................................................................................1
Recitals..........................................................................................................1
Authorization of Indenture........................................................................................1
Compliance with Legal Requirements................................................................................1
Purpose of and Consideration for Indenture........................................................................1
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions........................................................................................1
Affiliate................................................................................................2
Authenticating Agent.....................................................................................2
Bankruptcy Law...........................................................................................2
Board of Directors.......................................................................................2
Board Resolution.........................................................................................2
Business Day.............................................................................................2
Capital Securities.......................................................................................2
Capital Securities Guarantee.............................................................................2
Certificate..............................................................................................2
Common Securities........................................................................................2
Common Securities Guarantee..............................................................................3
Company..................................................................................................3
Custodian................................................................................................3
Debt Security or Debt Securities.........................................................................3
Debt Security Register...................................................................................3
Declaration..............................................................................................3
Default..................................................................................................3
Depositary...............................................................................................3
Event of Default.........................................................................................4
Exchange Act.............................................................................................4
Global Security..........................................................................................4
Indenture................................................................................................4
Institutional Trustee....................................................................................4
Interest.................................................................................................4
Interest Payment Date....................................................................................4
Mortgage.................................................................................................4
Officers' Certificate....................................................................................4
Opinion of Counsel.......................................................................................4
Original Issue Date......................................................................................4
Original Issue Discount Security.........................................................................5
Person...................................................................................................5
Predecessor Security.....................................................................................5
4
Principal Office of the Trustee..........................................................................6
Responsible Officer......................................................................................6
Securityholder, holder of Debt Securities................................................................6
Senior Indebtedness......................................................................................6
Subsidiary...............................................................................................6
Trust Indenture Act......................................................................................7
Trust Securities.........................................................................................7
Trustee..................................................................................................7
Union Planters Trust.....................................................................................7
Yield to Maturity........................................................................................7
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally....................................................................................7
SECTION 2.02. Form of Trustee's Certificate of Authentication....................................................8
SECTION 2.03. Amount Unlimited; Issuable in Series...............................................................8
SECTION 2.04. Authentication and Dating.........................................................................10
SECTION 2.05. Date and Denomination of Debt Securities..........................................................11
SECTION 2.06. Execution of Debt Securities......................................................................13
SECTION 2.07. Exchange and Registration of Transfer of Debt Securities..........................................13
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Debt Securities..............................................15
SECTION 2.09. Temporary Debt Securities.........................................................................16
SECTION 2.10. Cancellation of Debt Securities Paid, etc.........................................................17
SECTION 2.11. Global Securities.................................................................................17
SECTION 2.12. CUSIP Numbers.....................................................................................18
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest........................................................18
SECTION 3.02. Offices for Notices and Payments, etc.............................................................19
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office................................................19
SECTION 3.04. Provision as to Paying Agent......................................................................19
SECTION 3.05. Certificate to Trustee............................................................................20
SECTION 3.06. Compliance with Consolidation Provisions..........................................................21
SECTION 3.07. Limitation on Dividends...........................................................................21
SECTION 3.08. Covenants as to Union Planters Trusts.............................................................21
SECTION 3.09. Calculation of Original Issue Discount............................................................22
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists............................................................................22
SECTION 4.02. Preservation and Disclosure of Lists..............................................................22
SECTION 4.03. [Reserved]........................................................................................24
ii
5
SECTION 4.04. Reports by the Trustee............................................................................24
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT
SECTION 5.01. Events of Default.................................................................................24
SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor..............................................26
SECTION 5.03. Application of Moneys Collected by Trustee........................................................28
SECTION 5.04. Proceedings by Securityholders....................................................................29
SECTION 5.05. Proceedings by Trustee............................................................................29
SECTION 5.06. Remedies Cumulative and Continuing................................................................30
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders....................30
SECTION 5.08. Notice of Defaults................................................................................31
SECTION 5.09. Undertaking to Pay Costs..........................................................................31
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee............................................................32
SECTION 6.02. Reliance on Documents, Opinions, etc..............................................................33
SECTION 6.03. No Responsibility for Recitals, etc...............................................................34
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Debt
Securities........................................................................................34
SECTION 6.05. Moneys to be Held in Trust........................................................................34
SECTION 6.06. Compensation and Expenses of Trustee..............................................................34
SECTION 6.07. Officers' Certificate as Evidence.................................................................35
SECTION 6.08. Conflicting Interest of Trustee...................................................................35
SECTION 6.09. Eligibility of Trustee............................................................................36
SECTION 6.10. Resignation or Removal of Trustee.................................................................36
SECTION 6.11. Acceptance by Successor Trustee...................................................................37
SECTION 6.12. Succession by Merger, etc.........................................................................38
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.....................................................39
SECTION 6.14. Authenticating Agents.............................................................................39
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.........................................................................40
SECTION 7.02. Proof of Execution by Securityholders.............................................................41
SECTION 7.03. Who Are Deemed Absolute Owners....................................................................41
SECTION 7.04. Debt Securities Owned by Company Deemed Not Outstanding...........................................41
SECTION 7.05. Revocation of Consents; Future Holders Bound......................................................42
iii
6
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings..............................................................................42
SECTION 8.02. Call of Meetings by Trustee.......................................................................43
SECTION 8.03. Call of Meetings by Company or Securityholders....................................................43
SECTION 8.04. Qualifications for Voting.........................................................................43
SECTION 8.05. Regulations.......................................................................................43
SECTION 8.06. Voting............................................................................................44
SECTION 8.07. Quorum; Actions...................................................................................44
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Securityholders........................................45
SECTION 9.02. Supplemental Indentures with Consent of Securityholders...........................................47
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures............................48
SECTION 9.04. Notation on Debt Securities.......................................................................48
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee..........................49
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms...................................................49
SECTION 10.02. Successor Corporation to be Substituted..........................................................49
SECTION 10.03. Opinion of Counsel to be Given Trustee...........................................................50
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture...........................................................................50
SECTION 11.02. Deposited Moneys to be Held in Trust by Trustee..................................................51
SECTION 11.03. Paying Agent to Repay Moneys Held................................................................51
SECTION 11.04. Return of Unclaimed Moneys.......................................................................51
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate Obligations.......................................51
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.......................................................................................52
iv
7
SECTION 13.02. Official Acts by Successor Corporation...........................................................52
SECTION 13.03. Surrender of Company Powers......................................................................52
SECTION 13.04. Addresses for Notices, etc.......................................................................52
SECTION 13.05. Governing Law....................................................................................53
SECTION 13.06. Evidence of Compliance with Conditions Precedent.................................................53
SECTION 13.07. Non-Business Days................................................................................53
SECTION 13.08. Trust Indenture Act to Control...................................................................53
SECTION 13.09. Table of Contents, Headings, etc.................................................................53
SECTION 13.10. Execution in Counterparts........................................................................54
SECTION 13.11. Separability.....................................................................................54
SECTION 13.12. Assignment.......................................................................................54
SECTION 13.13. Acknowledgment of Rights.........................................................................54
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.........................................................................55
SECTION 14.02. Notice of Redemption; Selection of Debt Securities...............................................55
SECTION 14.03. Payment of Debt Securities Called for Redemption.................................................56
SECTION 14.04. Mandatory and Optional Sinking Fund..............................................................56
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate.........................................................................58
SECTION 15.02. Default on Senior Indebtedness...................................................................59
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.............................................................59
SECTION 15.04. Subrogation......................................................................................60
SECTION 15.05. Trustee to Effectuate Subordination..............................................................61
SECTION 15.06. Notice by the Company............................................................................61
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness............................................62
SECTION 15.08. Subordination May Not Be Impaired................................................................62
v
8
THIS INDENTURE, dated as of December 12, 1996, between Union
Planters Corporation, a Tennessee corporation (hereinafter sometimes called the
"Company"), and The First National Bank of Chicago, a national banking
association, as trustee (hereinafter sometimes called the "Trustee"),
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the issue from time to time of its subordinated unsecured
debentures, notes or other evidence of indebtedness to be issued in one or more
series (the "Debt Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and, to provide the terms and conditions upon which the Debt Securities are to
be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture
a valid agreement according to its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the
Debt Securities by the holders thereof, the Company covenants and agrees with
the Trustee for the equal and proportionate benefit of the respective holders
from time to time of the Debt Securities or of a series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.01. All other terms used in
this Indenture which are defined in the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), or which are by reference therein defined in the
Securities Act of 1933, as amended (the "Securities Act"), shall (except as
herein otherwise expressly provided or unless the context otherwise requires)
have the meanings assigned to such terms in said Trust Indenture Act and in
said Securities Act as in force at the date of this Indenture as originally
executed. All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
9
"Affiliate means", with respect to a specified Person, (a)
any Person directly or indirectly owning, controlling or holding with power to
vote 10% or more of the outstanding voting securities or other ownership
interests of the specified Person, (b) any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the specified
Person, (c) any Person directly or indirectly controlling, controlled by, or
under common control with the specified Person, (d) a partnership in which the
specified Person is a general partner, (e) any executive officer or director of
the specified Person, and (f) if the specified Person is an individual, any
entity of which the specified Person is an executive officer, director or
general partner.
"Authenticating Agent" shall mean any agent or agents of the
Trustee which at the time shall be appointed and acting pursuant to Section
6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors.
"Board of Directors" shall mean the board of directors or the
executive committee or any other duly authorized designated officers of the
Company.
"Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification.
"Business Day" shall mean, with respect to any series of Debt
Securities, any day other than a Saturday, Sunday or any other day on which
banking institutions in ▇▇▇ ▇▇▇▇ ▇▇▇▇ (▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇) are permitted
or required by any applicable law to close.
"Capital Securities" shall mean undivided beneficial
interests in the assets of a Union Planters Trust which rank pari passu with
Common Securities issued by such Union Planters Trust; provided, however, that
upon the occurrence of an Event of Default (as defined in the Declaration with
respect to such Union Planters Trust), the rights of holders of such Common
Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders
of such Capital Securities.
"Capital Securities Guarantee" shall mean, in respect of any
Union Planters Trust, any guarantee that the Company may enter into with The
First National Bank of Chicago or other Persons that operates directly or
indirectly for the benefit of holders of Capital Securities of such Union
Planters Trust.
"Certificate" shall mean a certificate signed by any one of
the principal executive officer, the principal financial officer or the
principal accounting officer of the Company.
"Common Securities" shall mean undivided beneficial interests
in the assets of a Union Planters Trust which rank pari passu with Capital
Securities issued by such Union Planters Trust; provided, however, that upon
the occurrence of an Event of Default (as defined in the Declaration with
respect to such Union Planters Trust), the rights of holders of such Common
2
10
Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders
of such Capital Securities.
"Common Securities Guarantee" shall mean, in respect of any
Union Planters Trust, any guarantee that the Company may enter into with any
Person or Persons and that operates directly or indirectly for the benefit of
holders of Common Securities of such Union Planters Trust.
"Company" shall mean Union Planters Corporation, a Tennessee
corporation, and, subject to the provisions of Article X, shall include its
successors and assigns.
"Custodian" shall mean any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law.
"Debt Security" or Debt Securities shall have the meaning
stated in the first recital of this Indenture and more particularly means any
debt security or debt securities, as the case may be, authenticated and
delivered under this Indenture.
"Debt Security Register" shall have the meaning specified in
Section 2.07.
"Declaration", with respect to a Union Planters Trust, shall
mean the Amended and Restated Declaration of Trust of such Union Planters
Trust.
"Default" means any event, act or condition that with notice
or lapse of time, or both, would constitute an Event of Default.
"Depositary" shall mean, with respect to Debt Securities of
any series for which the Company shall determine that such Debt Securities will
be issued as a Global Security, The Depository Trust Company, New York, New
York, another clearing agency, or any successor registered as a clearing agency
under the Exchange Act, or other applicable statute or regulation, which, in
each case, shall be designated by the Company pursuant to either Section 2.03
or 2.11.
"Event of Default" shall mean any event specified in Section
5.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Global Security" shall mean, with respect to any series of
Debt Securities, a Debt Security executed by the Company and delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, all in
accordance with the Indenture, which shall be registered in the name of the
Depositary or its nominee.
"Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, or both, and shall include the form and terms of particular
series of Debt Securities established as contemplated hereunder.
3
11
"Institutional Trustee" has the meaning set forth in the
Declaration of the applicable Union Planters Trust.
"Interest"shall mean, when used with respect to noninterest
bearing Debt Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any
installment of interest on a Debt Security of a particular series, shall mean
the date specified in such Debt Security or in a Board Resolution or in an
indenture supplemental hereto with respect to such series as the fixed date on
which an installment of interest with respect to Debt Securities of that series
is due and payable.
"Mortgage" shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
"Officers" Certificate" shall mean a certificate signed by
the Chairman of the Board, the Vice Chairman, the President, any Managing
Director or any Vice President, and by the Treasurer, an Assistant Treasurer,
the Comptroller, an Assistant Comptroller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 13.06 if and to the extent
required by the provisions of such Section.
"Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of or counsel to the Company, or may
be other counsel satisfactory to the Trustee. Each such opinion shall include
the statements provided for in Section 13.06 if and to the extent required by
the provisions of such Section.
"Original Issue Date" of any Debt Security (or any portion
thereof) shall mean the earlier of (a) the date of such Debt Security or (b)
the date of any Debt Security (or portion thereof) for which such Debt Security
was issued (directly or indirectly) on registration of transfer, exchange or
substitution.
"Original Issue Discount Security" shall mean any Debt
Security which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.01.
The term "outstanding", when used with reference to Debt
Securities, shall, subject to the provisions of Section 7.04, mean, as of any
particular time, all Debt Securities authenticated and delivered by the Trustee
or the Authenticating Agent under this Indenture, except
(a) Debt Securities theretofore canceled by the Trustee or
the Authenticating Agent or delivered to the Trustee for cancellation;
(b) Debt Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other than
this Company) or shall have been set aside and
4
12
segregated in trust by the Company (if the Company shall act as its own
paying agent); provided that, if such Debt Securities, or portions
thereof, are to be redeemed prior to maturity thereof, notice of such
redemption shall have been given as provided in Article Fourteen or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Debt Securities paid pursuant to Section 2.08 or in lieu of or
in substitution for which other Debt Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.08 unless
proof satisfactory to the Company and the Trustee is presented that any
such Debt Securities are held by bona fide holders in due course.
In determining whether the holders of the requisite principal
amount of outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.01.
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same debt as
that evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 2.08 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Principal Office of the Trustee", or other similar term,
shall mean the office of the Trustee, at which at any particular time its
corporate trust business shall be principally administered.
"Responsible Officer", when used with respect to the Trustee,
shall mean the chairman and vice chairman of the board of directors, the
chairman or vice chairman of the executive committee of the board of directors,
the president, any vice president, any assistant vice president, the cashier,
any assistant cashier, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any senior trust officer, any trust officer, the
controller, any assistant controller or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securityholder", "holder of Debt Securities", or other
similar terms, shall mean any Person in whose name at the time a particular
Debt Security is registered on the register kept by the Company or the Trustee
for that purpose in accordance with the terms hereof.
5
13
"Senior Indebtedness" means, with respect to the Company,
(i) the principal, premium, if any, and interest in respect of (A) indebtedness
of the Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, notes, bonds or other similar instruments issued by the Company,
including, without limitation, any current or future indebtedness under any
indenture (other than this Indenture) to which the Company is a party; (ii) all
capital lease obligations of the Company; (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
reimbursement on any letter of credit, banker's acceptance, any security
purchase facility, any repurchase agreement or similar arrangement, any
interest rate swap, any other hedging arrangement, any obligation under options
or any similar credit or other transaction; (v) all obligations of the type
referred to in clauses (i) through (iv) above of other Persons for the payment
of which the Company is responsible or liable as obligor, guarantor or
otherwise; and (vi) all obligations of the type referred to in clauses (i)
through (v) above of other Persons secured by any lien on any property or asset
of the Company (whether or not such obligation is assumed by the Company),
except for (1) any indebtedness between or among the Company or any Affiliate
of the Company and (2) any other debt securities issued pursuant to this
Indenture and guarantees in respect of those debt securities.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
the outstanding partnership or similar interests of which shall at the time be
owned by such Person, or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries and (iii) any limited partnership of which
such Person or any of its Subsidiaries is a general partner. For the purposes
of this definition, "voting stock" means shares, interests, participations or
other equivalents in the equity interest (however designated) in such Person
having ordinary voting power for the election of a majority of the directors
(or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939 as in force at the date of execution of this Indenture, except as provided
in Section 9.03.
"Trust Securities" shall mean Common Securities and Capital
Securities of a Union Planters Trust.
"Trustee" shall mean the Person identified as "Trustee" in
the first paragraph hereof, and, subject to the provisions of Article VI
hereof, shall also include its successors and assigns as Trustee hereunder. The
term "Trustee" as used with respect to a particular series of Debt Securities
shall mean the trustee with respect to that series.
6
14
"Union Planters Trust" shall mean a Delaware business trust, or any other
similar trust created for the purpose of issuing Capital Securities in
connection with the issuance of Debt Securities under this Indenture of which
the Company is the sponsor.
"Yield to Maturity" shall mean the yield to maturity on a series of Debt
Securities, calculated at the time of issuance of such series of Debt
Securities, or if applicable, at the most recent redetermination of interest on
such series and calculated in accordance with accepted financial practice.
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally.
The Debt Securities of each series shall be in substantially the form as
shall be established by or pursuant to a Board Resolution and as set forth in
an Officers' Certificate of the Company or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the Debt
Securities.
In the event the Debt Securities are issued in definitive form pursuant to
this Indenture, such Debt Securities shall be typed printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debt Securities, as evidenced by
their execution of such Debt Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Debt Securities shall
be in substantially the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
The First National Bank of Chicago, as Trustee
By_________________________
Authorized Signatory
SECTION 2.03. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
7
15
The Debt Securities may be issued in one or more series up to the
aggregate principal amount of Debt Securities of that series from time to time
authorized by or pursuant to a Board Resolution of the Company or pursuant to
one or more indentures supplemental hereto. Prior to the initial issuance of
Debt Securities of any series, there shall be established in or pursuant to a
Board Resolution of the Company and set forth in an Officers' Certificate of
the Company or established in one or more indentures supplemental:
(1) the title of the Debt Securities of the series (which shall
distinguish Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Debt Securities of the series pursuant to Section 2.07, 2.08, 2.09,
9.04 or 14.03);
(3) the date or dates on which the principal of and premium, if any,
on the Debt Securities of the series is payable;
(4) the rate or rates at which the Debt Securities of the series
shall bear interest, if any, or the method by which such interest may be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable or the
manner of determination of such Interest Payment Dates and the record
dates for the determination of holders to whom interest is payable on any
such Interest Payment Dates;
(5) the place or places where the principal of, and premium, if any,
and any interest on Debt Securities of the series shall be payable;
(6) the right, if any, to extend the interest payment periods and
the duration of such extension;
(7) the price or prices at which, the period or periods within which
and the terms and conditions upon which Debt Securities of the series may
be redeemed, in whole or in part, at the option of the Company, pursuant
to any sinking fund or otherwise:
(8) the obligation, if any, of the Company to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Securityholder thereof and the
price or prices at which and the period or periods within which, and the
terms and conditions upon which Debt Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall
be issuable;
8
16
(10) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 5.01 or provable in bankruptcy pursuant to Section 5.02;
(11) any Events of Default with respect to the Debt Securities of a
particular series, if not set forth herein;
(12) the form of the Debt Securities of the series including the
form of the certificate of authentication of such series;
(13) any trustee, authenticating or paying agents, warrant agents,
transfer agents or registrars with respect to the Debt Securities of such
series;
(14) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Security or Securities, and
whether beneficial owners of interests in any such Global Securities may
exchange such interests for other Debt Securities of such series in the
manner provided in Section 2.07, and the manner and the circumstances
under which and the place or places where any such exchanges may occur if
other than in the manner provided in Section 2.07, and any other terms of
the series relating to the global nature of the Global Securities of such
series and the exchange, registration or transfer thereof and the payment
of any principal thereof, or interest or premium, if any, thereon;
(15) if the Debt Securities of the series are issued pursuant to an
exemption from registration under the Securities Act; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such resolution of the Board of Directors or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of the series.
SECTION 2.04. Authentication and Dating.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debt Securities of any series executed by
the Company to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Debt Securities to or upon
the written order of the Company, signed by its Chairman of the Board of
Directors, Vice Chairman, the President, one of its Managing Directors or one
of its Vice Presidents and by its Secretary, any Assistant Secretary, Treasurer
or any
9
17
Assistant Treasurer, without any further action by the Company hereunder. In
authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon:
(1) a copy of any Board Resolution or Resolutions relating thereto
and, if applicable, an appropriate record of any action taken pursuant to
such resolution, in each case certified by the Secretary or an Assistant
Secretary of the Company as the case may be;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate setting forth the form and terms of the
Debt Securities if and as required pursuant to Sections 2.01 and 2.03,
respectively; and
(4) an Opinion of Counsel prepared in accordance with Section 13.06
which shall also state:
(a) that the form of such Debt Securities has been established by or
pursuant to a resolution of the Board of Directors or by a supplemental
indenture as permitted by Section 2.01 in conformity with the provisions
of this Indenture;
(b) that the terms of such Debt Securities have been established by
or pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.03 in conformity with
the provisions of this Indenture;
(c) that such Debt Securities, when authenticated and delivered by
the Trustee and issued by the Company in each case in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company;
(d) that all laws and requirements in respect of the execution and
delivery by the Company of the Debt Securities, have been complied with
and that authentication and delivery of the Debt Securities by the
Trustee will not violate the terms of the Indenture; and
(e) such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver
any Debt Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or vice presidents
shall determine that such action would expose the Trustee to personal liability
to existing holders.
10
18
SECTION 2.05. Date and Denomination of Debt Securities.
The Debt Securities shall be issuable as registered Debt Securities
without coupons and in such denominations as shall be specified as contemplated
by Section 2.03. In the absence of any such specification with respect to the
Debt Securities of any series, the Debt Securities of such series shall be
issuable in the denominations of $1,000 and any multiple thereof. The Debt
Securities shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plans as the officers executing the same may
determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Every Debt Security shall be dated the date of its authentication, shall
bear interest, if any, from such date and shall be payable on such dates, in
each case, as contemplated by Section 2.03. The interest installment on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date for Debt Securities of that series shall be paid to the
Person in whose name said Debt Security (or one or more Predecessor Securities)
is registered at the close of business on the regular record date for such
interest installment. In the event that any Debt Security of a particular
series or portion thereof is called for redemption and the redemption date is
subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Debt Security will be
paid upon presentation and surrender of such Debt Security as provided in
Section 14.03.
Any interest on any Debt Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for a Debt Security of
the same series (herein called "Defaulted Interest") shall forthwith cease to
be payable to the registered holder on the relevant regular record date by
virtue of having been such holder; and such Defaulted Interest shall be paid by
the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Debt Securities (or their
respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debt Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall not be more than
15 nor less than ten days prior to the date of the proposed payment and
not less than ten days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first class
postage prepaid, to each Securityholder at his or her address as it
appears in the Debt Security Register (as hereinafter defined), not less
than ten days prior to such special
11
19
record date. Notice of the proposed payment of such Defaulted Interest
and the special record date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such
Debt Securities (or their respective Predecessor Securities) are
registered on such special record date and shall be no longer payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Debt Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
In respect of any series of Debt Securities in which the right to extend the
interest payment periods has been provided pursuant to Section 2.03(6), any
interest scheduled to become payable on an Interest Payment Date occurring
during a valid extension of an interest payment period shall not be Defaulted
Interest and shall be payable on such other date as may be specified in the
terms of such Debt Securities.
Unless otherwise set forth in a Board Resolution of the Company or one or
more indentures supplemental hereto establishing the terms of any series of
Debt Securities pursuant to Section 2.01 hereof, the term "regular record date"
as used in this Section with respect to a series of Debt Securities with
respect to any Interest Payment Date for such series shall mean either the
fifteenth day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month, or the last
day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur,
if such Interest Payment Date is the fifteenth day of a month, whether or not
such date is a Business Day.
Subject to the foregoing provisions of this Section, each Debt Security of
a series delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security of such series shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Debt Security.
SECTION 2.06. Execution of Debt Securities.
The Debt Securities shall be signed in the name and on behalf of the
Company by the manual or facsimile signature of its Chairman of the Board of
Directors, Vice Chairman, President, one of its Managing Directors or one of
its Executive Vice Presidents, Senior Vice Presidents or Vice Presidents and by
the manual or facsimile signature of its Secretary, one of its Assistant
Secretaries, its Chief Financial Officer, its Treasurer or one of its Assistant
Treasurers, under its corporate seal which may be affixed thereto or printed,
engraved or otherwise reproduced thereon, by facsimile or otherwise, and which
need not be attested. Only such Debt Securities as shall bear thereon a
certificate of authentication substantially in the form herein before recited,
executed by the Trustee or the Authenticating Agent by the manual signature of
an
12
20
authorized signatory, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee or the
Authenticating Agent upon any Debt Security executed by the Company shall be
conclusive evidence that the Debt Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
In case any officer of the Company who shall have signed any of the Debt
Securities shall cease to be such officer before the Debt Securities so signed
shall have been authenticated and delivered by the Trustee or the
Authenticating Agent, or disposed of by the Company, such Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Debt Securities had not ceased to be such officer of the
Company; and any Debt Security may be signed on behalf of the Company by such
Persons as, at the actual date of the execution of such Debt Security, shall be
the proper officers of the Company, although at the date of the execution of
this Indenture any such person was not such an officer.
SECTION 2.07. Exchange and Registration of Transfer of Debt Securities.
Subject to Section 2.03(14), Debt Securities of any series may be
exchanged for a like aggregate principal amount of Debt Securities of the same
series of other authorized denominations. Debt Securities to be exchanged may
be surrendered at the principal corporate trust office of the Trustee or at any
office or agency to be maintained by the Company for such purpose as provided
in Section 3.02, and the Company shall execute, the Company or the Trustee
shall register and the Trustee or the Authenticating Agent shall authenticate
and make available for delivery in exchange therefor the Debt Security or Debt
Securities which the Securityholder making the exchange shall be entitled to
receive. Subject to Section 2.03(14), upon due presentment for registration of
transfer of any Debt Security of any series at the principal corporate trust
office of the Trustee or at any office or agency of the Company maintained for
such purpose as provided in Section 3.02, the Company shall execute, the
Company or the Trustee shall register and the Trustee or the Authenticating
Agent shall authenticate and make available for delivery in the name of the
transferee or transferees a new Debt Security or Debt Securities of the same
series for a like aggregate principal amount. Registration or registration of
transfer of any Debt Security by the Trustee or by any agent of the Company
appointed pursuant to Section 3.02, and delivery of such Debt Security, shall
be deemed to complete the registration or registration of transfer of such Debt
Security.
The Company shall cause to be kept, at the office or agency maintained for
the purpose of registration of transfer and for exchange as provided in Section
3.02, a register (the "Debt Security Register") for each series of Debt
Securities issued hereunder in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration and transfer
of all Debt Securities as in this Article Two provided. Such register shall be
in written form or in any other form capable of being converted into written
form within a reasonable time.
All Debt Securities presented for registration of transfer or for exchange
or payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly
13
21
endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee or the
Authenticating Agent duly executed by, the holder or his attorney duly
authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities, but the Company or the Trustee may require payment
of a sum sufficient to cover any tax, fee or other governmental charge that may
be imposed in connection therewith.
The Company or the Trustee shall not be required to exchange or register a
transfer of (a) any Debt Security for a period of 15 days next preceding the
date of selection of Debt Securities of such series for redemption, or (b) any
Debt Securities of any series selected, called or being called for redemption
in whole or in part, except in the case of any Debt Securities of any series to
be redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding the foregoing, if pursuant to Section 2.03, a series of
Debt Securities are issued pursuant to an exemption from registration under the
Securities Act, such Debt Securities may not be transferred except in
compliance with the restricted securities legend set forth below (the
"Restrictive Securities Legend"), unless otherwise determined by the Company in
accordance with applicable law:
THE DEBT SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS DEBT SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH DEBT SECURITY PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH UNION
PLANTERS CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS DEBT SECURITY (OR ANY PREDECESSOR OF THIS DEBT SECURITY) (THE
"RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE DEBT SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT ACQUIRING THE
DEBT SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR", FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION
14
22
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTIONS TERMINATION DATE.
Prior to any distribution of the Debt Securities to the holders of Capital
Securities in accordance with the related Declaration, the Company and the
Trustee shall enter into a supplemental indenture pursuant to Article IX to
provide for transfer procedures and restrictions with respect to the Debt
Securities substantially similar to those contained in the Declaration with
respect to Capital Securities of the corresponding series to the extent
applicable in the circumstances existing at the time of such distribution for
purposes of assuring, if applicable, that no registration of such Debt
Securities is required under the Securities Act of 1933, as amended.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Debt Securities.
In case any temporary or definitive Debt Security shall become mutilated
or be destroyed, lost or stolen, the Company shall execute, and upon its
request the Trustee shall authenticate and deliver, a new Debt Security of the
same series bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Debt Security, or in lieu of and in substitution
for the Debt Security so destroyed, lost or stolen. In every case the applicant
for a substituted Debt Security shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and the Trustee evidence to their satisfaction of
the destruction, loss or theft of such Debt Security and of the ownership
thereof.
The Trustee may authenticate any such substituted Debt Security and
deliver the same upon the written request or authorization of any officer of
the Company. Upon the issuance of any substituted Debt Security, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Debt Security which has matured or is
about to mature or has been called for redemption in full shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing
a substitute Debt Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless
and, in case of destruction, loss or theft, evidence satisfactory to the
Company and to the Trustee of the destruction, loss or theft of such Security
and of the ownership thereof.
Every substituted Debt Security of any series issued pursuant to the
provisions of this Section 2.08 by virtue of the fact that any such Debt
Security is destroyed, lost or stolen shall
15
23
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Debt Security shall be found at any time, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities of the same series duly
issued hereunder. All Debt Securities shall be held and owned upon the express
condition that, to the extent permitted by applicable law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.09. Temporary Debt Securities.
Pending the preparation of definitive Debt Securities of any series, the
Company may execute and the Trustee shall authenticate and make available for
delivery temporary Debt Securities that are typed, printed or lithographed.
Temporary Debt Securities shall be issuable in any authorized denomination, and
substantially in the form of the definitive Debt Securities but with such
omissions, insertions and variations as may be appropriate for temporary Debt
Securities, all as may be determined by the Company. Every such temporary Debt
Security shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with the
same effect, as the definitive Debt Securities. Without unreasonable delay the
Company will execute and deliver to the Trustee or the Authenticating Agent
definitive Debt Securities and thereupon any or all temporary Debt Securities
of such series may be surrendered in exchange therefor, at the principal
corporate trust office of the Trustee or at any office or agency maintained by
the Company for such purpose as provided in Section 3.02, and the Trustee or
the Authenticating Agent shall authenticate and make available for delivery in
exchange for such temporary Debt Securities a like aggregate principal amount
of such definitive Debt Securities. Such exchange shall be made by the Company
at its own expense and without any charge therefor except that in case of any
such exchange involving a registration of transfer the Company may require
payment of a sum sufficient to cover any tax, fee or other governmental charge
that may be imposed in relation thereto. Until so exchanged, the temporary Debt
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Debt Securities of the same series
authenticated and delivered hereunder.
SECTION 2.10. Cancellation of Debt Securities Paid, etc.
All Debt Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer, shall, if surrendered to the Company or
any paying agent, be surrendered to the Trustee and promptly canceled by it,
or, if surrendered to the Trustee or any Authenticating Agent, shall be
promptly canceled by it, and no Debt Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. All
Debt Securities canceled by any Authenticating Agent shall be delivered to the
Trustee. The Trustee shall deliver all canceled Debt Securities to the Company.
If the Company shall acquire any of the Debt Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Debt Securities unless and until the same are
surrendered to the Trustee for cancellation.
16
24
SECTION 2.11. Global Securities.
(a) If the Company shall establish pursuant to Section 2.03 that the Debt
Securities of a particular series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all or a specified portion of the outstanding Debt Securities of such series,
(ii) shall be registered in the name of the Depositary or its nominee, (iii)
shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in part, only to
another nominee of the Depositary or to a successor Depositary or to a nominee
of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.07, the Global Security of
a series may be transferred, in whole but not in part and only in the manner
provided in Section 2.07, only to another nominee of the Depositary for such
series, or to a successor Depositary for such series selected or approved by
the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Debt Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no
longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, this Section
2.11 shall no longer be applicable to the Debt Securities of such series and
the Company will execute, and subject to Section 2.07, the Trustee will
authenticate and make available for delivery the Debt Securities of such series
in definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. In addition, the
Company may at any time determine that the Debt Securities of any series shall
no longer be represented by a Global Security and that the provisions of this
Section 2.11 shall no longer apply to the Debt Securities of such series. In
such event the Company will execute and subject to Section 2.07, the Trustee,
upon receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and make available for delivery the Debt Securities
of such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Debt Securities in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be canceled by the Trustee. Such Debt Securities in
definitive registered form issued in exchange for the Global Security pursuant
to this Section 2.11(c) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Debt Securities to the Depositary for delivery to
the Persons in whose names such Debt Securities are so registered.
17
25
SECTION 2.12. CUSIP Numbers.
The Company in issuing the Debt Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Securityholders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Debt Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Debt
Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on each of the Debt Securities
of that series at the place, at the respective times and in the manner provided
in such Debt Securities. At the option of the Company, each installment of
interest on the Debt Securities of any series may be paid (i) by mailing checks
for such interest payable to the order of the holders of Debt Securities
entitled thereto as they appear on the registry books of the Company or (ii) if
so specified with respect to the Debt Securities of such series as contemplated
by Section 2.03, by wire transfer to any account with a banking institution
located in the United States designated by such Person to the paying agent no
later than the related record date.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Debt Securities remain outstanding, the Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where the Debt Securities of each series may be presented for payment, an
office or agency where the Debt Securities of that series may be presented for
registration of transfer and for exchange as in this Indenture provided and an
office or agency where notices and demands to or upon the Company in respect of
the Debt Securities of that series or of this Indenture may be served. The
Company will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. Until otherwise
designated from time to time by the Company in a notice to the Trustee, or
specified as contemplated by Section 2.03, such office or agency for all of the
above purposes shall be the office or agency of the Trustee. In case the
Company shall fail to maintain any such office or agency in the Borough of
Manhattan, The City of New York, or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands
may be made and notices may be served at the principal corporate trust office
of the Trustee.
18
26
In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside the Borough of
Manhattan, The City of New York, where the Debt Securities may be presented for
registration of transfer and for exchange in the manner provided in this
Indenture, and the Company may from time to time rescind such designation, as
the Company may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain any such office or agency in the Borough of Manhattan,
The City of New York, for the purposes above mentioned. The Company will give
to the Trustee prompt written notice of any such designation or rescission
thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the Trustee
with respect to the Debt Securities of any series, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provision of this Section 3.04,
(1) that it will hold all sums held by it as such agent for the payment of
the principal of and premium, if any, or interest, if any, on the Debt
Securities of such series (whether such sums have been paid to it by the
Company or by any other obligor on the Debt Securities of such series) in trust
for the benefit of the holders of the Debt Securities of such series;
(2) that it will give the Trustee notice of any failure by the Company (or
by any other obligor on the Debt Securities of such series) to make any payment
of the principal of and premium, if any, or interest, if any, on the Debt
Securities of such series when the same shall be due and payable; and
(3) that it will, at any time during the continuance of any such failure,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of and premium, if any, or interest, if
any, on the Debt Securities of any series, set aside, segregate and hold in
trust for the benefit of the holders of the Debt Securities of such series a
sum sufficient to pay such principal, premium or interest so becoming due and
will notify the Trustee of any failure to take such action and of any failure
by the Company (or by any other obligor under the Debt Securities of such
series) to make any payment of the principal of and premium, if any, or
interest, if any, on the Debt Securities of such series when the same shall
become due and payable.
19
27
Whenever the Company shall have one or more paying agents for any series
of Debt Securities, it will, on or prior to each due date of the principal of
and premium, if any, or interest, if any, on any Debt Securities of such
series, deposit with a paying agent a sum sufficient to pay the principal,
premium or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto and (unless such paying agent is the
Trustee) the Company shall promptly notify the Trustee of its action or failure
to act.
(c) Anything in this Section 3.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Debt Securities
hereunder, or for any other reason, pay, or direct any paying agent to pay to
the Trustee all sums held in trust for any such series by the Company or any
such paying agent, such sums to be held by the Trustee upon the trusts herein
contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.04 is subject to
Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days after the
end of each fiscal year in each year, so long as Debt Securities of any series
are outstanding hereunder, a Certificate stating that in the course of the
performance by the signers of their duties as officers of the Company they
would normally have knowledge of any default by the Company in the performance
of any covenants contained herein, stating whether or not they have knowledge
of any such default and, if so, specifying each such default of which the
signers have knowledge and the nature thereof.
SECTION 3.06. Compliance with Consolidation Provisions.
The Company will not, while any of the Debt Securities remain outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article X hereof are complied with.
SECTION 3.07. Limitation on Dividends.
If Debt Securities of a series are initially issued to a Union Planters
Trust or a trustee of such trust in connection with the issuance of Trust
Securities by such Union Planters Trust (regardless of whether Debt Securities
continue to be held by such trust) and (i) there shall have occurred and be
continuing any event that would constitute an Event of Default, (ii) the
Company shall be in default with respect to its payment of any obligations
under a Capital Securities Guarantee or a Common Securities Guarantee with
respect to securities issued by such trust, or (iii) the Company shall have
given notice of its election to defer payments of interest on the Debt
Securities of such series by extending the interest payment period as provided
herein and such period, or any extension thereof, shall be continuing, then (a)
the Company shall not declare or pay any dividend on, make a distribution with
respect to, or redeem, purchase, acquire, or make a liquidation payment with
respect to, any of its capital stock or rights to acquire such capital stock
(other than (i) purchases or acquisitions of shares of the Company's capital
stock or
20
28
rights to acquire such capital stock in connection with the satisfaction by the
Company of its obligations under any employee benefit plans, (ii) as a result
of a reclassification of the Company's capital stock or rights to acquire such
capital stock or the exchange or conversion of one class or series of the
Company's capital stock or rights to acquire such capital stock for another
class or series of the Company's capital stock or rights to acquire such
capital stock, (iii) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (iv) dividends
and distributions made on the Company's capital stock or rights to acquire such
capital stock with the Company's capital stock or rights to acquire such
capital stock or (v) any declaration of a dividend in connection with the
implementation of that certain Share Purchase Rights Plan adopted by the Board
of Directors on January 19, 1989 relating to the designation and authorization
of Series A Preferred Stock of the Company, or the redemption or repurchase of
any such rights pursuant thereto) or make any guarantee payments with respect
to the foregoing, and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by the Company that rank pari passu
with or junior to the Debt Securities of such series.
SECTION 3.08. Covenants as to Union Planters Trusts.
In the event Debt Securities of a series are initially issued to a Union
Planters Trust or a trustee of such trust in connection with the issuance of
Trust Securities by such Union Planters Trust, for so long as such Trust
Securities remain outstanding, the Company will (i) maintain 100% ownership of
the Common Securities of such Union Planters Trust; provided, however, that any
permitted successor of the Company under this Indenture may succeed to the
Company's ownership of such Common Securities, (ii) use its reasonable efforts
to cause such Union Planters Trust (a) to remain a statutory business trust,
except in connection with a distribution of Debt Securities of such series to
the holders of such Trust Securities in liquidation of such Trust, the
redemption of all of the Trust Securities of such Union Planters Trust or
mergers, consolidations or amalgamations, each as permitted by the Declaration
of such Union Planters Trust, and (b) to otherwise continue to be classified as
a grantor trust for United States federal income tax purposes and (iii) use its
reasonable efforts to cause each holder of Trust Securities issued by such
Trust to be treated as owning an undivided beneficial interest in the Debt
Securities of such series issued to such Trust.
SECTION 3.09. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods), if any, accrued on outstanding
Debt Securities as of the end of such year.
21
29
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or caused to be
furnished to the Trustee:
(a) on each regular record date for each series of Debt Securities, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Securityholders of such series of Debt Securities as of such
record date (and on dates to be determined pursuant to Section 2.03 for
non-interest bearing securities in each year); and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; except that no such lists need be furnished under this Section
4.01 so long as the Trustee is in possession thereof by reason of its acting as
Debt Security registrar for such series.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
each series of Debt Securities (1) contained in the most recent list furnished
to it as provided in Section 4.01 or (2) received by it in the capacity of Debt
Securities registrar (if so acting) hereunder. The Trustee may destroy any list
furnished to it as provided in Section 4.01 upon receipt of a new list so
furnished.
(b) In case three or more holders of Debt Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has owned a
Debt Security of such series for a period of at least six months preceding the
date of such application, and such application states that the applicants
desire to communicate with other holders of Debt Securities of such series or
with holders of all Debt Securities with respect to their rights under this
Indenture or under such Debt Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall within five Business Days after the receipt of such
application, at its election, either:
(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection
(a) of this Section 4.02, or
(2) inform such applicants as to the approximate number of holders
of such series or all Debt Securities, as the case may be, whose names
and addresses appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this
Section 4.02, and as to the approximate cost of mailing to such
22
30
Securityholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such series or all Debt Securities, as the case
may be, whose name and address appear in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section 4.02 a copy of the form of proxy or other communication which is
specified in such request with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, if permitted or required by applicable law,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the holders of Debt Securities of such series or all Debt
Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If said
Commission, as permitted or required by applicable law, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, said Commission
shall find, after notice and opportunity for hearing, that all the objections
so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Securityholders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every holder of Debt Securities, by receiving and holding the
same, agrees with Company and the Trustee that neither the Company nor the
Trustee nor any paying agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Debt Securities in accordance with the provisions of subsection (b) of this
Section 4.02, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
SECTION 4.03. [Reserved]
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee
shall, within 60 days after each May 15 following the date of this Indenture
deliver to Securityholders a brief report, dated as of such May 15, which
complies with the provisions of such Section 313(a).
23
31
(b) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with each stock exchange, if any, upon
which the Securities are listed, with the Commission, if required by applicable
law, and with the Company. The Company will promptly notify the Trustee when
the Debt Securities are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON AN EVENT OF DEFAULT
SECTION 5.01. Events of Default.
The following Events of Default with respect to Debt Securities of any
series or such other events as may be established with respect to the Debt
Securities of that series as contemplated by Section 2.03 hereof shall be
"Events of Default" with respect to Debt Securities of that series:
(a) the Company defaults in the payment of any interest upon any Debt
Securities of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; provided, however, that a valid extension
of an interest payment period by the Company in accordance with the terms of
such Debt Securities shall not constitute a default in the payment of interest
for this purpose; or
(b) the Company defaults in the payment of all or any part of the
principal of (or premium, if any, on) any Debt Securities of that series as and
when the same shall become due and payable either at maturity, upon redemption
(including redemption for any sinking fund), by declaration or otherwise;
provided, however, that a valid extension of the maturity of such Debt
Securities in accordance with the terms of such Debt Securities shall not
constitute a default in the payment of principal or premium, if any; or
(c) the Company defaults with respect to indebtedness for money borrowed
resulting in acceleration of such indebtedness having an aggregate principal
amount in excess of $25 million and such acceleration is not rescinded or
annulled within 30 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the outstanding Debt
Securities of that series, a written notice specifying such acceleration and
stating that such Notice is a "Notice of Default" hereunder; or
(d) the Company defaults in the performance of, or breaches, any of its
covenants or warranties in this Indenture or in the terms of that series of
Debt Securities established pursuant to this Indenture (other than a covenant
or warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or breach for
a period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the outstanding Debt
Securities of that series, a
24
32
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(e) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part
of its property, or ordering the winding-up or liquidation of its affairs and
such decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(f) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or
(g) as to Debt Securities of any series issued to a Union Planters Trust,
such Union Planters Trust shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its existence except in
connection with (i) the distribution of the Debt Securities of such series to
holders of such Trust Securities in liquidation of their interests in such
Union Planters Trust, (ii) the redemption of all of the outstanding Trust
Securities of such Union Planters Trust or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the Declaration of such
Union Planters Trust.
If an Event of Default occurs and is continuing with respect to any series
of Debt Securities, then, and in each and every such case, unless the principal
of all of the Debt Securities of that series shall have already become due and
payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debt Securities of that series then outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Debt Securities
of that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all Debt
Securities of that series and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal (or, if the Debt Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Debt Securities of any series (or of all the Debt
Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Company shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Debt Securities of such series (or of all the Debt
Securities, as the case may be) and the principal of and premium, if any, on
any and all Debt Securities of such series (or of all the Debt Securities, as
the case may be) which shall
25
33
have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Debt Securities of such
series, (or at the respective rates of interest or Yields to Maturity of all
the Debt Securities, as the case may be) to the date of such payment or
deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and if any and all Events of Default under
the Indenture, other than the non-payment of the principal of or premium, if
any, on Debt Securities which shall have become due by acceleration, shall have
been cured, waived or otherwise remedied as provided herein -- then and in
every such case the holders of a majority in aggregate principal amount of the
Debt Securities of such series (or of all the Debt Securities, as the case may
be) then outstanding, by written notice to the Company and to the Trustee, may
waive all defaults with respect to that series (or with respect to all Debt
Securities, as the case may be, in such case, treated as a single class) and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Trustee and the holders of the Debt Securities shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the holders of the Debt
Securities shall continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the
payment of any installment of interest upon any of the Debt Securities of any
series as and when the same shall become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case default shall be
made in the payment of the principal of or premium, if any, on any of the Debt
Securities of any series as and when the same shall have become due and
payable, whether at maturity of the Debt Securities of that series or upon
redemption or by declaration or otherwise -- then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the Debt
Securities of that series the whole amount that then shall have become due and
payable on all such Debt Securities of that series for principal and premium,
if any, or interest, or both, as the case may be, with interest upon the
overdue principal and premium, if any, and (to the extent that payment of such
interest is enforceable under applicable law) upon the overdue installments of
interest at the rate or Yield to Maturity (in the case of Original Issue
Discount Securities) borne by the Debt Securities of that series; and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including a reasonable compensation to the Trustee,
its agents, attorneys and counsel, and any expenses or liabilities incurred by
the Trustee hereunder other than through its negligence or bad faith. In case
the Company shall fail forthwith to pay such amounts upon such demand, the
26
34
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any actions or proceedings at law or in equity for
the collection of the sums so due and unpaid, and may prosecute any such action
or proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor on such Debt Securities
and collect in the manner provided by law out of the property of the Company or
any other obligor on such Debt Securities wherever situated the moneys adjudged
or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Debt Securities of
any series under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any other applicable law, or
in case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debt Securities
of any series, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Debt
Securities of any series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section 5.02, shall be
entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal and interest
(or, if the Debt Securities of that series are Original Issue Discount
Securities such portion of the principal amount as may be specified in the
terms of that series) owing and unpaid in respect of the Debt Securities of
such series and, in case of any judicial proceedings, to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in such judicial proceedings relative to the Company or
any other obligor on the Debt Securities of any series, or to the creditors or
property of the Company or such other obligor, unless prohibited by applicable
law and regulations, to vote on behalf of the holders of the Debt Securities or
any series in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings, and to collect
and receive any moneys or other property payable or deliverable on any such
claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the Securityholders to make such payments to
the Trustee, and, in the event that the Trustee shall consent to the making of
such payments directly to the Securityholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or bad
faith.
Nothing herein contained shall be construed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debt Securities of any series or the rights of
27
35
any holder thereof or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities, may be enforced by the Trustee without the
possession of any of the Debt Securities, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit of
the holders of the Debt Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
holders of the Debt Securities, and it shall not be necessary to make any
holders of the Debt Securities parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the following
order, at the date or dates fixed by the Trustee for the distribution of such
moneys, upon presentation of the several Debt Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection applicable to
such series and reasonable compensation to the Trustee, its agents, attorneys
and counsel, and of all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or bad
faith;
Second: To the payment of all Senior Indebtedness of the Company if and to
the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon Debt
Securities of such series for principal (and premium, if any), and interest on
the Debt Securities of such series, in respect of which or for the benefit of
which money has been collected, ratably, without preference or priority of any
kind, according to the amounts due on such Debt Securities for principal (and
premium, if any) and interest, respectively; and
Fourth: The balance, if any, to the Company.
SECTION 5.04. Proceedings by Securityholders.
No holder of any Debt Security of any series shall have any right by
virtue of or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Debt Securities of such series specifying such Event of
Default, as hereinbefore provided, and unless also the holders of not less than
25% in aggregate principal amount of the Debt Securities
28
36
of that series then outstanding shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action,
suit or proceeding, it being understood and intended, and being expressly
covenanted by the taker and holder of every Debt Security with every other
taker and holder and the Trustee, that no one or more holders of Debt
Securities of any series shall have any right in any manner whatever by virtue
of or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other holder of Debt Securities of such series, or
to obtain or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Debt Securities of the applicable series.
Notwithstanding any other provisions in this Indenture, however, the right
of any holder of any Debt Security to receive payment of the principal of (and
premium, if any) and interest, if any, on such Debt Security, on or after the
same shall have become due and payable, or to institute suit for the
enforcement of any such payment, shall not be impaired or affected without the
consent of such holder. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 5.05. Proceedings by Trustee.
In case of an Event of Default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either by suit in equity or by
action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture
or in aid of the exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested in the Trustee by this Indenture or
by law.
SECTION 5.06. Remedies Cumulative and Continuing.
Except as otherwise provided in Section 2.08, all powers and remedies
given by this Article V to the Trustee or to the Securityholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of the Debt
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such series, and no delay or omission of
the Trustee or of any holder of any of the Debt Securities to exercise any
right or power accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.04, every power and remedy given by this Article V or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
29
37
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by Majority
of Securityholders.
The holders of a majority in aggregate principal amount of the Debt
Securities of any or all series affected (voting as one class) at the time
outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series; provided, however, that (subject to the provisions of Section 6.01) the
Trustee shall have the right to decline to follow any such direction if the
Trustee shall determine that the action so directed would be unjustly
prejudicial to the holders not taking part in such direction or if the Trustee
being advised by counsel determines that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee of directors
or trustees and/or Responsible Officers shall determine that the action or
proceedings so directed would involve the Trustee in personal liability. Prior
to any declaration accelerating the maturity of any series of the Debt
Securities, or of all the Debt Securities, as the case may be, the holders of a
majority in aggregate principal amount of the Debt Securities of that series at
the time outstanding may on behalf of the holders of all of the Debt Securities
of such series waive (or modify any previously granted waiver of) any past
default or Event of Default, including any default or Event of Default the
conditions for the occurrence of which are established pursuant to Section
2.03, and its consequences, except a default (a) in the payment of principal
of, premium, if any, or interest on any of the Debt Securities, (b) in respect
of covenants or provisions hereof which cannot be modified or amended without
the consent of the holder of each Debt Security affected, or (c) a default of
the covenants contained in Section 3.08; provided, however, that if the Debt
Securities of such series are held by a Union Planters Trust or a trustee of
such trust, such waiver or modification to such waiver shall not be effective
until the holders of a majority in liquidation preference of Trust Securities
of the applicable Union Planters Trust shall have consented to such waiver or
modification to such waiver; provided, further, that if the consent of the
holder of each outstanding Debt Security is required, such waiver shall not be
effective until each holder of the Trust Securities of the applicable Union
Planters Trust shall have consented to such waiver. Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of this
Indenture and the Company, the Trustee and the holders of the Debt Securities
of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Whenever any default or Event of Default hereunder shall have been waived as
permitted by this Section 5.07, said default or Event of Default shall for all
purposes of the Debt Securities of that series (or of all Securities, as the
case may be) and this Indenture be deemed to have been cured and to be not
continuing.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a default with
respect to the Debt Securities of any series, mail to all Securityholders of
that series, as the names and addresses of such holders appear upon the Debt
Security Register, notice of all defaults with respect to that series known to
the Trustee, unless such defaults shall have been cured before the giving of
such notice (the term "defaults" for the purpose of this Section 5.08 being
hereby
30
38
defined to be the events specified in clauses (a), (b), (c), (d), (e) and (f)
of Section 5.01, not including periods of grace, if any, provided for therein,
and irrespective of the giving of written notice specified in clause (c) of
Section 5.01); and provided that, except in the case of default in the payment
of the principal of, premium, if any, or interest on any of the Debt Securities
of such series, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such series; and provided further, that in the case of any
default of the character specified in Section 5.01(c) no such notice to
Securityholders of such series shall be given until at least 60 days after the
occurrence thereof but shall be given within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Debt Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.09 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders of any series, holding in the aggregate more than 10% in
principal amount of the Debt Securities of that series outstanding, or to any
suit instituted by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Debt Security against the
Company on or after the same shall have become due and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of any series of Debt Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to Debt Securities of that series and after the curing or waiving of
all Events of Default which may have occurred, with respect to Debt Securities
of that series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Debt Securities of a series has occurred (which has not been
cured or waived) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
31
39
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to Debt
Securities of a series and after the curing or waiving of all Events of Default
with respect to that series which may have occurred
(1) the duties and obligations of the Trustee with respect to Debt
Securities of such series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations with respect to such
series as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee, and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith, in accordance with the direction of
the Securityholders pursuant to Section 5.07, relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, note, debenture or other paper
or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
32
40
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and any
Board Resolution may be evidenced to the Trustee by a copy thereof certified by
the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any advice
or Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture,
unless such Securityholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence of
an Event of Default with respect to a series of the Debt Securities (that has
not been cured or waived) to exercise with respect to Debt Securities of that
series such of the rights and powers vested in it by this Indenture, and to use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
coupon or other paper or document, unless requested in writing to do so by the
holders of not less than a majority in principal amount of the outstanding Debt
Securities of the series affected thereby; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so
proceeding; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents (including
any Authenticating Agent) or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent or
attorney appointed by it with due care.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Debt Securities (except in the
certificate of authentication of the Trustee or the Authenticating Agent) shall
be taken as the statements of the Company and the Trustee and the
Authenticating Agent assume no responsibility for the correctness of the same.
The Trustee and the Authenticating Agent make no representations as to
33
41
the validity or sufficiency of this Indenture or of the Debt Securities. The
Trustee and the Authenticating Agent shall not be accountable for the use or
application by the Company of any Debt Securities or the proceeds of any Debt
Securities authenticated and delivered by the Trustee or the Authenticating
Agent in conformity with the provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Debt Securities.
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Debt Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities with the same
rights it would have if it were not Trustee, Authenticating Agent, paying
agent, transfer agent or Debt Security registrar.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received by the
Trustee or any paying agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company
. So long as no Event of Default shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by the Chairman of the Board of Directors,
the President, a Managing Director, a Vice President, the Treasurer or an
Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed to
in writing between the Company and the Trustee (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify each of the Trustee or any predecessor
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any and all loss, damage, claim, liability or expense
including taxes (other than taxes based on the income of the Trustee) incurred
without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability in
the premises. The obligations of the Company under this Section 6.06 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Debt Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the holders
of particular Debt Securities.
34
42
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d), Section
5.01(e) or Section 5.01(f), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or omitting any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or omitted
by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act, subject to the penultimate paragraph of such section.
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation organized and
doing business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Securities and Exchange Commission
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars ($50,000,000)
and subject to supervision or examination by federal, state, territorial, or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 6.09 the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
records of condition so published.
The Company may not, nor may any person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 6.09, the Trustee shall resign immediately
in the manner and with the effect specified in Section 6.10.
35
43
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all series of Debt Securities by
giving written notice of such resignation to the Company and by mailing notice
thereof to the holders of the applicable series of Debt Securities at their
addresses as they shall appear on the Debt Security Register. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
trustee or trustees with respect to the applicable series by written
instrument, in duplicate, executed by order of its Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor Trustee. If no successor Trustee shall have been so appointed
with respect to any series of Debt Securities and have accepted appointment
within 30 days after the mailing of such notice of resignation to the affected
Securityholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Debt Security or Debt Securities of the
applicable series for at least six months may, subject to the provisions of
Section 5.09, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor Trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor Trustee.
(b) In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the provisions of Section 6.08
after written request therefor by the Company or by any Securityholder who has
been a bona fide holder of a Debt Security or Debt Securities for at least six
months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Company may remove the Trustee and
appoint a successor Trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, or,
subject to the provisions of Section 5.09, any Securityholder who has been a
bona fide holder of a Debt Security or Debt Securities of the applicable series
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint successor Trustee.
(c) Upon prior written notice to the Company and the Trustee, the holders
of a majority in aggregate principal amount of the Debt Securities of any
series at the time outstanding may at any time remove the Trustee with respect
to such series and nominate a successor Trustee with respect to the applicable
series of Debt Securities, which shall be deemed appointed as
36
44
successor Trustee with respect to the applicable series unless within ten
Business Days after such nomination the Company objects thereto, in which case
the Trustee so removed or any Securityholder of the applicable series, upon the
terms and conditions and otherwise as in subsection (a) of this Section 6.10
provided, may petition any court of competent jurisdiction for an appointment
of a successor Trustee with respect to such series.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor Trustee appointed as provided in Section 6.10 shall execute,
acknowledge and deliver to the Company and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the retiring Trustee with respect to all or any applicable series
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as Trustee herein; but, nevertheless, on the
written request of the Company or of the successor Trustee, the Trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 6.06, execute and deliver an instrument transferring to
such successor Trustee all the rights and powers of the Trustee so ceasing to
act and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee thereunder. Upon request of
any such successor Trustee, the Company shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor Trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by
such Trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
If a successor Trustee is appointed with respect to the Debt Securities of
one or more (but not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Debt Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Debt Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the Trust hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
No successor Trustee shall accept appointment as provided in this Section
6.11 unless at the time of such acceptance such successor Trustee shall be
qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
37
45
Upon acceptance of appointment by a successor Trustee as provided in this
Section 6.11, the Company shall mail notice of the succession of such Trustee
hereunder to the holders of Debt Securities of any applicable series at their
addresses as they shall appear on the Debt Security Register. If the Company
fails to mail such notice within ten Business Days after the acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Debt Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee
may adopt the certificate of authentication of any predecessor Trustee, and
deliver such Debt Securities so authenticated; and in case at that time any of
the Debt Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Debt Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee; and
in all such cases such certificates shall have the full force which it is
anywhere in the Debt Securities of such series or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
authenticate Debt Securities of any series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by the Trustee
upon the request of the Company with power to act on its behalf and subject to
its direction in the authentication and delivery of Debt Securities of any
series issued upon exchange or transfer thereof as fully to all intents and
purposes as though any such Authenticating Agent had been expressly authorized
to authenticate and deliver Debt Securities of such series; provided that the
Trustee shall have no liability to the Company for any acts or omissions of the
Authenticating Agent with respect to the authentication and delivery of Debt
Securities of any series. Any such Authenticating Agent shall at all times be a
corporation organized and doing business under the
38
46
laws of the United States or of any state or territory thereof or of the
District of Columbia authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of at least $5,000,000 and being subject
to supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 6.14 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating
Agent hereunder, if such successor corporation is otherwise eligible under this
Section 6.14 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign with respect to one or
more or all series of Debt Securities by giving written notice of resignation
to the Trustee and to the Company. The Trustee may at any time terminate the
agency of any Authenticating Agent with respect to one or more or all series of
Debt Securities by giving written notice of termination to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time any Authenticating Agent shall cease
to be eligible under this Section 6.14, the Trustee may, and upon the request
of the Company shall, promptly appoint a successor Authenticating Agent with
respect to the applicable series eligible under this Section 6.14, shall give
written notice of such appointment to the Company and shall mail notice of such
appointment to all holders of the applicable series of Debt Securities as the
names and addresses of such holders appear on the Debt Security Register. Any
successor Authenticating Agent with respect to all or any series upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities with respect to such series of its
predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein.
The Company agrees to pay to any Authenticating Agent from time to time
reasonable compensation for its services. Any Authenticating Agent shall have
no responsibility or liability for any action taken by it as such in accordance
with the directions of the Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Debt Securities of any or all
series may take any action
39
47
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in person or by agent or proxy
appointed in writing, or (b) by the record of such holders of Debt Securities
voting in favor thereof at any meeting of such Securityholders duly called and
held in accordance with the provisions of Article Eight, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of such Securityholders or (d) by any other method the Trustee deems
satisfactory.
If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action or revocation of the same, the Company may, at its option, as evidenced
by an Officers' Certificate, fix in advance a record date for such series for
the determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action or revocation of the same may be given before
or after the record date, but only the Securityholders of record at the close
of business on the record date shall be deemed to be Securityholders for the
purposes of determining whether Securityholders of the requisite proportion of
outstanding Debt Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action or revocation of the same, and for that purpose the
outstanding Debt Securities of that series shall be computed as of the record
date; provided, however, that no such authorization, agreement or consent by
such Securityholders on the record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Debt Securities shall be proved by the Debt
Security Register or by a certificate of the Debt Security registrar. The
Trustee may require such additional proof of any matter referred to in this
Section as it shall deem necessary.
The record of any Securityholders' meeting shall be proved in the manner
provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Debt
Security, the Company, the Trustee, any Authenticating Agent, any paying agent,
any transfer agent and any Security registrar may deem the person in whose name
such Debt Security shall be registered upon the Debt Security Register to be,
and may treat him as, the absolute owner of such Debt Security (whether or not
such Debt Security shall be overdue) for the purpose of receiving
40
48
payment of or on account of the principal of, premium, if any, and (subject to
Section 2.05) interest on such Debt Security and for all other purposes; and
neither the Company nor the Trustee nor any Authenticating Agent nor any paying
agent nor any transfer agent nor any Security registrar shall be affected by
any notice to the contrary. All such payments so made to any holder for the
time being or upon his order shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Debt Security.
SECTION 7.04. Debt Securities Owned by Company Deemed Not Outstanding.
In determining whether the holders of the requisite aggregate principal
amount of Debt Securities have concurred in any direction, consent or waiver
under this Indenture, Debt Securities which are owned by the Company or any
other obligor on the Debt Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any other obligor on the Debt Securities shall be disregarded
and deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver, only Debt
Securities which the Trustee actually knows are so owned shall be so
disregarded. Debt Securities so owned which have been pledged in good faith may
be regarded as outstanding for the purposes of this Section 7.04 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Debt Securities and that the pledgee is not the Company or any such other
obligor or Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor.
In the case of a dispute as to such right, any decision by the Trustee taken
upon the advice of counsel shall be full protection to the Trustee.
SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.01, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Debt Securities specified in
this Indenture in connection with such action, any holder (in cases where no
record date has been set pursuant to Section 7.01) or any holder as of an
applicable record date (in cases where a record date has been set pursuant to
Section 7.01) of a Debt Security (or any Debt Security issued in whole or in
part in exchange or substitution therefor) the serial number of which is shown
by the evidence to be included in the Debt Securities the holders of which have
consented to such action may, by filing written notice with the Trustee at the
Principal Office of the Trustee and upon proof of holding as provided in
Section 7.02, revoke such action so far as concerns such Debt Security (or so
far as concerns the principal amount represented by any exchanged or
substituted Debt Security). Except as aforesaid any such action taken by the
holder of any Debt Security shall be conclusive and binding upon such holder
and upon all future holders and owners of such Debt Security, and of any Debt
Security issued in exchange or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any notation in regard thereto
is made upon such Debt Security or any Debt Security issued in exchange or
substitution therefor.
41
49
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders of any or all series may be called at any
time and from time to time pursuant to the provisions of this Article Eight for
any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by Securityholders pursuant to any of the provisions of Article V;
(b) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article VI;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 9.02; or
(d) to take any other action authorized to be taken by or on behalf of the
holders of any specified aggregate principal amount of such Debt Securities
under any other provision of this Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders of any or
all series to take any action specified in Section 8.01, to be held at such
time and at such place in the Borough of Manhattan, The City of New York, as
the Trustee shall determine. Notice of every meeting of the Securityholders of
any or all series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
to holders of Debt Securities of each series affected at their addresses as
they shall appear on the Debt Securities Register for each series affected.
Such notice shall be mailed not less than 20 nor more than 180 days prior to
the date fixed for the meeting.
SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a resolution of the Board of
Directors, or the holders of at least 10% in aggregate principal amount of the
Debt Securities of any or all series, as the case may be, then outstanding,
shall have requested the Trustee to call a meeting of Securityholders of any or
all series, as the case may be, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and
the place in said Borough of Manhattan for such meeting and may call such
meeting to take any action authorized in Section 8.01, by mailing notice
thereof as provided in Section 8.02.
42
50
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a Person shall
(a) be a holder of one or more Debt Securities with respect to which the
meeting is being held or (b) a Person appointed by an instrument in writing as
proxy by a holder of one or more such Debt Securities. The only Persons who
shall be entitled to be present or to speak at any meeting of Securityholders
shall be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Debt Securities and of
the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 7.04, at any meeting each holder of
Debt Securities with respect to which such meeting is being held or proxy
therefor shall be entitled to one vote for each $1,000 principal amount (in the
case of Original Issue Discount Securities, such principal amount to be
determined as provided in the definition "outstanding") of Debt Securities held
or represented by him; provided, however, that no vote shall be cast or counted
at any meeting in respect of any Debt Security challenged as not outstanding
and ruled by the chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Debt Securities
held by him or instruments in writing as aforesaid duly designating him as the
Person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
may be adjourned from time to time by a majority of those present, whether or
not constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of holders of Debt
Securities with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such holders or of their
representatives by proxy and the serial number or numbers of the Debt
Securities held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the
43
51
meeting their verified written reports in triplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.02. The record
shall show the serial numbers of the Debt Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 8.07. Quorum; Actions.
The Persons entitled to vote a majority in principal amount of the Debt
Securities of a series shall constitute a quorum for a meeting of
Securityholders of such series; provided, however, that if any action is to be
taken at such meeting with respect to a consent, waiver, request, demand,
notice, authorization, direction or other action which may be given by the
holders of not less than a specified percentage in principal amount of the Debt
Securities of a series, the Persons holding or representing such specified
percentage in principal amount of the Debt Securities of such series will
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request
of Securityholders of such series, be dissolved. In any other case the meeting
may be adjourned for a period of not less than 10 days as determined by the
permanent chairman of the meeting prior to the adjournment of such meeting. In
the absence of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period of not less than 10 days as determined by
the permanent chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 8.02, except that such notice need be given only
once not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal
amount of the Debt Securities of such series which shall constitute a quorum.
Except as limited by the proviso in the first paragraph of Section 9.02,
any resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the affirmative vote
of the Holders of a majority in principal amount of the Debt Securities of that
series; provided, however, that, except as limited by the proviso in the first
paragraph of Section 9.02, any resolution with respect to any consent, waiver,
request, demand, notice, authorization, direction or other action which this
Indenture expressly provides may be given by the holders of not less than a
specified percentage in principal amount of the Debt Securities of a series may
be adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid only by the affirmative vote of the holders of a
not less than such specified percentage in principal amount of the Debt
Securities of that series.
44
52
Any resolution passed or decision taken at any meeting of holders of Debt
Securities of any series duly held in accordance with this Section shall be
binding on all the Securityholders of such series, whether or not present or
represented at the meeting.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Securityholders.
The Company, when authorized by a Board Resolution, and the Trustee may
from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect), without the consent of the Securityholders,
for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company, pursuant to Article X
hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of all or any
series of Debt Securities (and if such covenants are to be for the benefit of
less than all series of Debt Securities stating that such covenants are
expressly being included for the benefit of such series) as the Board of
Directors and the Trustee shall consider to be for the protection of the
holders of such Debt Securities, and to make the occurrence, or the occurrence
and continuance, of a default in any of such additional covenants, restrictions
or conditions a default or an Event of Default permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein set
forth; provided, however, that in respect of any such additional covenant,
restriction or condition such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies available to
the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture; provided that any such action shall not adversely
affect the interests of the holders of the Debt Securities of any series;
(d) to add to, delete from, or revise the terms of Debt Securities of any
series as required by Section 2.07, including, without limitation, any terms
relating to the issuance, exchange, registration or transfer of Debt
Securities, including to provide for transfer procedures and restrictions
substantially similar to those applicable to the Capital Securities relating to
such series (for purposes of assuring that no registration of Debt Securities
of a series subject to transfer restrictions is required under the Securities
Act of 1933, as amended); provided that any such action shall not adversely
affect the interests of the holders of the Debt Securities of any
45
53
series then outstanding (it being understood, for purposes of this proviso,
that transfer restrictions on Debt Securities of a series substantially similar
to those that were applicable to Capital Securities of the related series shall
not be deemed to adversely affect the holders of the Debt Securities);
(e) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Debt Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11;
(f) to make any change (other than as elsewhere provided in this
paragraph) that does not adversely affect the rights of any Securityholder in
any material respect; or
(g) to provide for the issuance of and establish the form and terms and
conditions of the Debt Securities of any series, to establish the form of any
certifications required to be furnished pursuant to the terms of this Indenture
or any series of Debt Securities, or to add to the rights of the holders of any
series of Debt Securities.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not
be obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
9.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Debt Securities at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 7.01) of the holders of
not less than a majority in aggregate principal amount of the Debt Securities
at the time outstanding of all series affected by such supplemental indenture
(voting as a class), the Company and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act, then in effect,
applicable to indentures qualified thereunder) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debt Securities of each series so affected;
provided, however, that no such supplemental indenture shall without the
consent of the holders of each Debt Security then outstanding and affected
thereby (i) extend the fixed maturity of any Debt Security of any series, or
reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount payable
on redemption thereof or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than that provided in the Debt
Securities, or reduce
46
54
the amount of the principal of an Original Issue Discount Security that would
be due and payable upon an acceleration of the maturity thereof pursuant to
Section 5.01 or the amount thereof provable in bankruptcy pursuant to Section
5.02, or impair or affect the right of any Securityholder to institute suit for
payment thereof or impair the right of repayment, if any, at the option of the
holder, or (ii) reduce the aforesaid percentage of Debt Securities the holders
of which are required to consent to any such supplemental indenture; provided,
further, that if the Debt Securities of such series are held by a Union
Planters Trust or a trustee of such trust, such supplemental indenture shall
not be effective until the holders of a majority in liquidation preference of
Trust Securities of the applicable Trust shall have consented to such
supplemental indenture; provided further, that if the consent of the
Securityholder of each outstanding Debt Security is required, such supplemental
indenture shall not be effective until each holder of the Trust Securities of
the applicable Union Planters Trust shall have consented to such supplemental
indenture.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities, or which modifies
the rights of Securityholders of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture or the
Securityholders of any other series.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, prepared by the
Company, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby as their names
and addresses appear upon the Debt Security Register. Any failure of the
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act, as then in effect to the
extent applicable to indentures qualified under the Trust Indenture Act. Upon
the execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified
47
55
and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Debt Securities of each series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Debt Securities.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental indenture affecting such series pursuant to the
provisions of this Article IX may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Debt Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors of the Company, to any modification of this Indenture contained in
any such supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Debt Securities of any series then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article IX. The Trustee may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed
pursuant to this Article IX is authorized or permitted by, and conforms to, the
terms of this Article IX and that it is proper for the Trustee under the
provisions of this Article IX to join in the execution thereof.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in the Debt Securities of any
series shall prevent any consolidation or merger of the Company with or into
any other corporation or corporations (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company, or its successor
or successors) authorized to acquire and operate the same; provided, however,
that the Company hereby covenants and agrees that, upon any such consolidation,
merger (where the Company is not the surviving corporation), sale, conveyance,
transfer or other disposition, the due and punctual payment of the principal of
(and premium, if any) and interest on all of the Debt Securities of all series
in accordance with the
48
56
terms of each series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this
Indenture with respect to each series or established with respect to such
series to be kept or performed by the Company, shall be expressly assumed by
supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect, applicable to indentures qualified
thereunder) satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired such
property.
SECTION 10.02. Successor Corporation to be Substituted.
In case of any such consolidation, merger, sale, conveyance, transfer or
other disposition and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of and
premium, if any, and interest on all of the Debt Securities and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Company, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the Company, and thereupon the
predecessor corporation shall be relieved of any further liability or
obligation hereunder or upon the Debt Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of Union Planters Corporation, any or all of the Debt Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee or the Authenticating Agent; and, upon the order
of such successor corporation instead of the Company and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee or
the Authenticating Agent shall authenticate and deliver any Debt Securities
which previously shall have been signed and delivered by the officers of the
Company, to the Trustee or the Authenticating Agent for authentication, and any
Debt Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee or the Authenticating Agent for that
purpose. All the Debt Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debt Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Debt Securities had been issued at the date of the execution
hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or other disposition, and any assumption,
permitted or required by the terms of this Article X complies with the
provisions of this Article X.
49
57
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for cancellation all
Debt Securities theretofore authenticated (other than any Debt Securities which
shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.08) and not theretofore canceled, or (b) all the
Debt Securities not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee, in trust, funds,
which shall be immediately due and payable, sufficient to pay at maturity or
upon redemption all of the Debt Securities (other than any Debt Securities
which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.08) not theretofore canceled or
delivered to the Trustee for cancellation, including principal and premium, if
any, and interest due or to become due to such date of maturity or redemption
date, as the case may be, but excluding, however, the amount of any moneys for
the payment of principal of, and premium, if any, or interest on the Debt
Securities (1) theretofore repaid to the Company in accordance with the
provisions of Section 11.04, or (2) paid to any state or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in either
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further
effect except for the provisions of Sections 2.05, 2.07, 2.08, 3.01, 3.02,
3.04, 6.06, 6.10 and 11.04 hereof shall survive until such Debt Securities
shall mature and be paid. Thereafter, Sections 6.10 and 11.04 shall survive,
and the Trustee, on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture, the Company, however, hereby agreeing to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred by the Trustee in connection with this Indenture or the Debt
Securities.
SECTION 11.02. Deposited Moneys to be Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and applied by it to
the payment, either directly or through any paying agent (including the Company
if acting as its own paying agent), to the holders of the particular Debt
Securities for the payment of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal, and premium,
if any, and interest.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then held
by any paying agent of the Debt Securities (other than the Trustee) shall, upon
demand of the Company,
50
58
be repaid to it or paid to the Trustee, and thereupon such paying agent shall
be released from all further liability with respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying agent for
payment of the principal of, and premium, if any, or interest on Debt
Securities and not applied but remaining unclaimed by the holders of Debt
Securities for two years after the date upon which the principal of, and
premium, if any, or interest on such Debt Securities, as the case may be, shall
have become due and payable, shall be repaid to the Company by the Trustee or
such paying agent on written demand; and the holder of any of the Debt
Securities shall thereafter look only to the Company for any payment which such
holder may be entitled to collect and all liability of the Trustee or such
paying agent with respect to such moneys shall thereupon cease.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate
Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest on any Debt Security, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental indenture, or
in any such Debt Security, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company or of any
successor corporation of the Company, either directly or through the Company or
any successor corporation of the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Debt
Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in this Indenture
contained by the Company shall bind its successors and assigns whether so
expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done
51
59
and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company as the case may be, and
thereupon such power so surrendered shall terminate both as to the Company, and
as to any successor corporation.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is required
or permitted to be given or served by the Trustee or by the holders of Debt
Securities on the Company may be given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company, with the Trustee for the
purpose) to the Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Secretary. Any notice, direction, request or demand by any
Securityholder or the Company to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the office of the Trustee, addressed to the Trustee, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services
Division.
SECTION 13.05. Governing Law.
This Indenture and each Debt Security shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
governed by and construed in accordance with the laws of said State, without
regard to conflict of laws principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company, shall
furnish to the Trustee an Officers' Certificate stating that in the opinion of
the signers all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
52
60
SECTION 13.07. Non-Business Days.
Subject to Section 2.03, in any case where the date of payment of interest
on or principal of the Debt Securities will be a Saturday, Sunday or a day on
which banking institutions in ▇▇▇ ▇▇▇▇ ▇▇▇▇ (▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇) are
permitted or required by any applicable law to close, the payment of such
interest on or principal of the Debt Securities need not be made on such date
but may be made on the next succeeding day not a Saturday, Sunday or a day on
which banking institutions in such City are permitted or required by any
applicable law to close, with the same force and effect as if made on the date
of payment and no interest shall accrue for the period from and after such
date.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this Indenture or
in the Debt Securities of any series shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Indenture or
of such Debt Securities, but this Indenture and such Debt Securities shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company, will remain liable for all such obligations. Subject
to the foregoing, this Indenture is binding upon and inures to the benefit of
the parties hereto and their respective successors and assigns. This Indenture
may not otherwise be assigned by the parties thereto.
53
61
SECTION 13.13. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Debt Securities held by
any Union Planters Trust or a trustee of such trust, if the Institutional
Trustee of such trust fails to enforce its rights under this Indenture as the
holder of the series of Debt Securities held as the assets of such Union
Planters Trust any holder of Capital Securities may institute legal proceedings
directly against the Company to enforce such Institutional Trustee's rights
under this Indenture without first instituting any legal proceedings against
such Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Company to pay interest (or premium, if
any) or principal on the applicable series of Debt Securities on the date such
interest (or premium, if any) or principal is otherwise payable (or in the case
of redemption, on the redemption date), the Company acknowledges that a holder
of record of Capital Securities of the Union Planters Trust that purchased the
applicable series of Debt Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of (or premium, if any)
or interest on the applicable series of Debt Securities having a principal
amount equal to the aggregate liquidation amount of the Capital Securities of
such holder on or after the respective due date specified in the applicable
series of Debt Securities.
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.
The provisions of this Article shall be applicable to the Debt Securities
of any series which are redeemable before their maturity or to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
as contemplated by Section 2.03 for Debt Securities of such series.
SECTION 14.02. Notice of Redemption; Selection of Debt Securities.
In case the Company shall desire to exercise the right to redeem all, or,
as the case may be, any part of the Debt Securities of any series in accordance
with their terms, it shall fix a date for redemption and shall mail a notice of
such redemption at least 30 and not more than 60 days prior to the date fixed
for redemption to the holders of Debt Securities of such series so to be
redeemed as a whole or in part at their last addresses as the same appear on
the Debt Security Register. Such mailing shall be by first class mail. The
notice if mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the holder receives such notice. In any
case, failure to give such notice by mail or any defect in the notice to the
holder of any Debt Security of a series designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Debt Security of such series.
54
62
Each such notice of redemption shall specify the CUSIP number of the Debt
Securities to be redeemed, the date fixed for redemption, the redemption price
at which Debt Securities of such series are to be redeemed, the place or places
of payment, that payment will be made upon presentation and surrender of such
Debt Securities, that interest accrued to the date fixed for redemption will be
paid as specified in said notice, and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. If less
than all the Debt Securities of such series are to be redeemed the notice of
redemption shall specify the numbers of the Debt Securities of that series to
be redeemed. In case any Debt Security of a series is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Debt Security, a new Debt Security or Debt
Securities of that series in principal amount equal to the unredeemed portion
thereof will be issued.
On or prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Company will deposit with the Trustee or
with one or more paying agents an amount of money sufficient to redeem on the
redemption date all the Debt Securities so called for redemption at the
appropriate redemption price, together with accrued interest to the date fixed
for redemption.
If all, or less than all, the Debt Securities of a series are to be
redeemed, the Company will give the Trustee notice not less than 45 nor more
than 60 days, respectively, prior to the redemption date as to the aggregate
principal amount of Debt Securities of that series to be redeemed and the
Trustee shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Debt Securities of that series or portions thereof
(in integral multiples of $1,000, except as otherwise set forth in the
applicable form of Debt Security) to be redeemed.
SECTION 14.03. Payment of Debt Securities Called for Redemption.
If notice of redemption has been given as provided in Section 14.02 or
Section 14.04, the Debt Securities or portions of Debt Securities of the series
with respect to which such notice has been given shall become due and payable
on the date and at the place or places stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Company shall default in the
payment of such Debt Securities at the redemption price, together with interest
accrued to said date) interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue. On
presentation and surrender of such Debt Securities at a place of payment
specified in said notice, the said Debt Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption.
Upon presentation of any Debt Security of any series redeemed in part
only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to the holder thereof, at the expense of the Company, a
new Debt Security or Debt Securities of such series of authorized
denominations, in principal amount equal to the unredeemed portion of the Debt
Security so presented.
55
63
SECTION 14.04. Mandatory and Optional Sinking Fund.
The minimum amount of any sinking fund payment provided for by the terms
of Debt Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment". The last date on which any such payment may be
made is herein referred to as a "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option (a) deliver to the Trustee Debt Securities of that series theretofore
purchased by the Company and (b) may apply as a credit Debt Securities of that
series which have been redeemed either at the election of the Company pursuant
to the terms of such Debt Securities or through the application of optional
sinking fund payments pursuant to the next succeeding paragraph, in each case
in satisfaction of all or any part of any mandatory sinking fund payment,
provided that such Debt Securities have not been previously so credited. Each
such Debt Security so delivered or applied as a credit shall be credited at the
sinking fund redemption price for such Debt Securities and the amount of any
mandatory sinking fund shall be reduced accordingly. If the Company intends so
to deliver or credit such Debt Securities with respect to any mandatory sinking
fund payment it shall deliver to the Trustee at least 60 days prior to the next
succeeding sinking fund payment date for such series (a) a certificate signed
by the Secretary, an Assistant Secretary, the Treasurer or an Assistant
Treasurer of the Company specifying the portion of such sinking fund payment,
if any, to be satisfied by payment of cash and the portion of such sinking fund
payment, if any, which is to be satisfied by delivering and crediting such Debt
Securities and the basis for such credit and stating that such Debt Securities
have not been previously so credited and (b) any Debt Securities to be so
delivered. All Debt Securities so delivered to the Trustee shall be canceled by
the Trustee and no Debt Securities shall be authenticated in lieu thereof. If
the Company fails to deliver such certificate and Debt Securities at or before
the time provided above, the Company shall not be permitted to satisfy any
portion of such mandatory sinking fund payment by delivery or credit of Debt
Securities.
At its option the Company may pay into the sinking fund for the retirement
of Debt Securities of any particular series, on or before each sinking fund
payment date for such series, any additional sum in cash as specified by the
terms of such series of Debt Securities. If the Company intends to exercise its
right to make any such optional sinking fund payment, it shall deliver to the
Trustee at least 60 days prior to the next succeeding sinking fund payment date
for such series a certificate signed by the Secretary, an Assistant Secretary,
the Treasurer or an Assistant Treasurer of the Company stating that the Company
intends to exercise such optional right and specifying the amount which the
Company intends to pay on such sinking fund payment date. If the Company fails
to deliver such certificate at or before the time provided above, the Company
shall not be permitted to make any optional sinking fund payment with respect
to such sinking fund payment date. To the extent that such right is not
exercised in any year it shall not be cumulative or carried forward to any
subsequent year.
If the sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in
cash shall exceed $50,000
56
64
(or a lesser sum if the Company shall so request) with respect to the Debt
Securities of any particular series, it shall be applied by the Trustee or one
or more paying agents on the next succeeding sinking fund payment date to the
redemption of Debt Securities of such series at the sinking fund redemption
price together with accrued interest to the date fixed for redemption. The
Trustee shall select, in the manner provided in Section 14.02, for redemption
on such sinking fund payment date a sufficient principal amount of Debt
Securities of such series to absorb said cash, as nearly as may be, and the
Trustee shall, at the expense and in the name of the Company, thereupon cause
notice of redemption of Debt Securities of such series to be given in
substantially the manner and with the effect provided in Sections 14.02 and
14.03 for the redemption of Debt Securities of that series in part at the
option of the Company, except that the notice of redemption shall also state
that the Debt Securities of such series are being redeemed for the sinking
fund. Any sinking fund moneys not so applied or allocated by the Trustee or any
paying agent to the redemption of Debt Securities of that series shall be added
to the next cash sinking fund payment received by the Trustee or such paying
agent and, together with such payment, shall be applied in accordance with the
provisions of this Section 14.04. Any and all sinking fund moneys held by the
Trustee or any paying agent on the maturity date of the Debt Securities of any
particular series, and not held for the payment or redemption of particular
Debt Securities of such series, shall be applied by the Trustee or such paying
agent, together with other moneys, if necessary, to be deposited sufficient for
the purpose, to the payment of the principal of the Debt Securities of that
series at maturity.
On or before each sinking fund payment date, the Company shall pay to the
Trustee or to one or more paying agents in cash a sum equal to all interest
accrued to the date fixed for redemption on Debt Securities to be redeemed on
the next following sinking fund payment date pursuant to this Section.
Neither the Trustee nor any paying agent shall redeem any Debt Securities
of a series with sinking fund moneys, and the Trustee shall not mail any notice
of redemption of Debt Securities for such series by operation of the sinking
fund, during the continuance of a default in payment of interest on such Debt
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph), except that if the notice of redemption of
any Debt Securities shall theretofore have been mailed in accordance with the
provisions hereof, the Trustee or any paying agent shall redeem such Debt
Securities if cash sufficient for that purpose shall be deposited with the
Trustee or such paying agent for that purpose in accordance with the terms of
this Article XIV. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur and
any moneys thereafter paid into the sinking fund shall, during the continuance
of such default or Event of Default, be held as security for the payment of all
such Debt Securities; provided, however, that in case such Event of Default or
default, shall have been cured or waived as provided herein, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date on which
such moneys may be applied pursuant to the provisions of this Section 14.04.
57
65
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of Debt Securities
issued hereunder and under any supplemental indenture or by any Board
Resolution ("Additional Provisions") by such Securityholder's acceptance
thereof likewise covenants and agrees, that all Debt Securities shall be issued
subject to the provisions of this Article XV; and each holder of a Debt
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, and premium, if any, and
interest on all Debt Securities issued hereunder and under any Additional
Provisions shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment to the prior payment in full of all
Senior Indebtedness of the Company, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any default by the Company in
the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness of the Company following any grace period, or in the event
that the maturity of any Senior Indebtedness of the Company has been
accelerated because of a default, then, in either case, no payment shall be
made by the Company, with respect to the principal (including redemption and
sinking fund payments) of, or premium, if any, or interest on the Debt
Securities.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the
Company, whether voluntary or involuntary or
58
66
in bankruptcy, insolvency, receivership or other proceedings, all amounts due
upon all Senior Indebtedness of the Company, shall first be paid in full, or
payment thereof provided for in money in accordance with its terms, before any
payment is made by the Company, on account of the principal (and premium, if
any) or interest on the Debt Securities; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Securityholders or the Trustee would
be entitled to receive from the Company, except for the provisions of this
Article XV, shall be paid by the Company, or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Securityholders or by the Trustee under the Indenture
if received by them or it, directly to the holders of Senior Indebtedness of
the Company (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the Company) or
their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear, to
the extent necessary to pay such Senior Indebtedness in full, in money or
money's worth, after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Indebtedness, before any payment or
distribution is made to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness of
the Company, remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the benefit of the holders
of such Senior Indebtedness.
For purposes of this Article XV, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XV with respect to
the Debt Securities to the payment of all Senior Indebtedness of the Company,
that may at the time be outstanding, provided that (i) such Senior Indebtedness
is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of such
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company with, or
the merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article X of this Indenture shall not
be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 15.03 if such other corporation shall, as a part of
such consolidation,
59
67
merger, conveyance or transfer, comply with the conditions stated in Article X
of this Indenture. Nothing in Section 15.02 or in this Section 15.03 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
6.06 of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness of the Company,
the Securityholders shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company, applicable to such Senior Indebtedness until the
principal of (and premium, if any) and interest on the Debt Securities shall be
paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Indebtedness of any cash, property
or securities to which the Securityholders or the Trustee would be entitled
except for the provisions of this Article XV, and no payment over pursuant to
the provisions of this Article XV to or for the benefit of the holders of such
Senior Indebtedness by Securityholders or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness of the
Company, and the holders of the Debt Securities be deemed to be a payment or
distribution by the Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article XV are and are intended solely
for the purposes of defining the relative rights of the holders of the
Securities, on the one hand, and the holders of such Senior Indebtedness, on
the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture, any
Additional Provisions or in the Debt Securities is intended to or shall impair,
as between the Company, its creditors other than the holders of Senior
Indebtedness of the Company, and the holders of the Debt Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
holders of the Debt Securities the principal of (and premium, if any) and
interest on the Debt Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the holders of the Debt Securities and creditors of the
Company, other than the holders of Senior Indebtedness of the Company, nor
shall anything herein or therein prevent the Trustee or the holder of any Debt
Security from exercising all remedies otherwise permitted by applicable law
upon default under the Indenture, subject to the rights, if any, under this
Article XV of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company, received upon the exercise of any such
remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article XV, the Trustee, subject to the provisions of Article VI of this
Indenture, and the Securityholders shall be entitled to conclusively rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Securityholders, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article XV.
60
68
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof authorizes
and directs the Trustee on such Securityholder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided in
this Article XV and appoints the Trustee such Securityholder's attorney-in-fact
for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer of
the Trustee at the Principal Office of the Trustee of any fact known to the
Company that would prohibit the making of any payment of monies to or by the
Trustee in respect of the Debt Securities pursuant to the provisions of this
Article XV. Notwithstanding the provisions of this Article XV or any other
provision of this Indenture or any Additional Provisions, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the Debt
Securities pursuant to the provisions of this Article XV, unless and until a
Responsible Officer of the Trustee at the Principal Office of the Trustee shall
have received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Article VI of
this Indenture, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section 15.06 at least two Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (or
premium, if any) or interest on any Debt Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the purposes for
which they were received, and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to such
date.
The Trustee, subject to the provisions of Article VI of this Indenture,
shall be entitled to conclusively rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
of the Company (or a trustee or representative on behalf of such holder), to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or representative on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
such Senior Indebtedness to participate in any payment or distribution pursuant
to this Article XV, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article XV, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
61
69
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article XV in respect of any Senior Indebtedness at any time
held by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture or any Additional Provisions shall deprive the
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XV, and no implied
covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture or any Additional Provisions
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of such Senior Indebtedness and, subject to the provisions of
Article VI of this Indenture, the Trustee shall not be liable to any holder of
such Senior Indebtedness if it shall pay over or deliver to Securityholders,
the Company or any other Person money or assets to which any holder of such
Senior Indebtedness shall be entitled by virtue of this Article XV or
otherwise.
Nothing in this Article XV shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness of the
Company to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company, or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company, with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof that any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness of the Company may, at any time and from time to
time, without the consent of or notice to the Trustee or the Securityholders,
without incurring responsibility to the Securityholders and without impairing
or releasing the subordination provided in this Article XV or the obligations
hereunder of the holders of the Debt Securities to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company, and any other Person.
The First National Bank of Chicago hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions herein above set
forth.
62
70
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
UNION PLANTERS CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Chairman of the Board and
Chief Executive Officer
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
63