As
filed with the Securities and Exchange Commission on December 13, 2010
Registration No. 333-150448
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST HORIZON NATIONAL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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Tennessee
(State or Other Jurisdiction of
Incorporation or Organization)
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62-0803242
(I.R.S. Employer
Identification Number)
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165 Madison Avenue
Memphis, Tennessee 38103
(901) 523-4444
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Clyde A. Billings, Jr.
Senior Vice President, Assistant General Counsel and Corporate Secretary
165 Madison Avenue
Memphis, TN 38103
(901) 523-4444
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With a copy to:
Robert W. Reeder III
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
(212) 558-4000
Approximate date of commencement of proposed sale to the public: From time to time after
the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box.
o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box.
þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
þ
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box.
þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one)
Large
Accelerated
Filer
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Accelerated
Filer
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Non-Accelerated Filer
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(Do not check if a smaller reporting company)
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Smaller Reporting Company
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CALCULATION OF REGISTRATION FEE(1)
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Amount to be Registered/
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Title of Each Class of
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Proposed Maximum Offering Price Per Unit/
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Amount of
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Debt securities to be Registered
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Proposed Maximum Aggregate Offering Price
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Registration Fee
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Senior Debt Securities
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(1
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(1
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Junior Subordinated Debt Securities
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(1
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(1
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(1)
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An indeterminate aggregate initial offering price or number or amount of debt securities
of First Horizon National Corporation (the Registrant) are being registered as may from time
to time be offered and sold at indeterminate prices. The senior debt securities and junior
subordinated debt securities may be convertible into or exchangeable for other securities
previously registered by the Registrant or to be registered in the future by the Registrant.
The senior debt securities and junior subordinated debt securities may be included in a unit
or purchase contract with other securities previously registered by the Registrant or to be
registered in the future by the Registrant. The Registrant will determine the proposed maximum
offering price per security from time to time in connection with the offer and sale of debt
securities registered under this registration statement. Separate consideration may or may not
be received for debt securities that
are issuable on exercise, conversion or exchange of other securities. In accordance with Rules
456(b) and 457(r) of the Securities Act of 1933, as amended, the Registrant is deferring payment
of all of the registration fees and will pay the registration fee subsequently in advance or on
a pay-as-you-go basis.
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PROSPECTUS
FIRST HORIZON NATIONAL CORPORATION
Senior Debt Securities
Junior Subordinated Debt Securities
The securities listed above may be offered and sold by us from time to time. We will
provide the specific terms of these debt securities in supplements to this prospectus. You should
read this prospectus and the applicable prospectus supplement carefully before you invest in the
debt securities described in the applicable prospectus supplement.
We may offer and sell these securities directly through agents, dealers or underwriters as
designated from time to time, or through a combination of these methods. If any agents, dealers or
underwriters are involved in the sale of any securities, the applicable prospectus supplement will
set forth any applicable commissions or discounts. See
Plan of Distribution
for a further
description of the manner in which we may sell the securities covered by this prospectus.
This prospectus may not be used to sell securities unless accompanied by the applicable
prospectus supplement.
You should carefully read this prospectus and the applicable prospectus supplement, together
with the documents incorporated by reference, before you make your investment decision.
See Risk Factors beginning on page 5 of this prospectus, page 18 of our Annual Report on
Form 10-K for the year ended December 31, 2009, page 111 of our Quarterly Report on
Form 10-Q
for
the quarterly period ended June 30, 2010 and page 122 of our Quarterly Report on
Form 10-Q
for the
quarterly period ended September 30, 2010, which are incorporated herein by reference, to read
about factors you should consider before buying any debt securities.
These debt securities will not be savings accounts, deposits or other obligations of any bank
or non-bank subsidiary of ours and are not insured by the Federal Deposit Insurance Corporation,
the Bank Insurance Fund or any other governmental agency and involve investment risks.
NONE OF THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION, THE FEDERAL
DEPOSIT INSURANCE CORPORATION, THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM OR ANY OTHER
REGULATORY BODY HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This
prospectus is dated December 13, 2010.
TABLE OF CONTENTS
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Unless otherwise mentioned or unless the context requires otherwise, all references in this
prospectus to First Horizon, we, us, our, or similar references mean First Horizon National
Corporation and does not include its subsidiaries or affiliates.
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed with the Securities and
Exchange Commission (SEC) using a shelf registration process. Under this shelf registration
process, we may sell senior debt securities and junior subordinated debt securities in one or more
offerings. Each time we sell securities we will provide a prospectus supplement and, if applicable,
a pricing supplement containing specific information about the terms of the securities being
offered. That prospectus supplement may include a discussion of any risk factors or other special
considerations that apply to those securities. The prospectus supplement and any pricing supplement
may also add, update or change the information contained in this prospectus. If there is any
inconsistency between the information in this prospectus (including the information incorporated by
reference herein) and any prospectus supplement or pricing supplement, you should rely on the
information in that prospectus supplement or pricing supplement. You should read both this
prospectus and any prospectus supplement together with additional information described under the
heading
Where You Can Find More Information
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The registration statement containing this prospectus, including exhibits to the registration
statement, provides additional information about us and the debt securities offered under this
prospectus. The registration statement can be read at the SEC web site mentioned under the heading
Where You Can Find More Information
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WHERE YOU CAN FIND MORE INFORMATION
We are required to file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the SECs public reference
room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on its public reference room. In addition, our SEC filings are available to the
public through the SECs Internet site at http://www.sec.gov. You can also inspect reports, proxy
statements and other information about us at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference into this prospectus the information in
documents we file with it. This means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is considered to be a
part of this prospectus and should be read with the same care. When we update the information
contained in documents that have been incorporated by reference by making future filings with the
SEC the information incorporated by reference in this prospectus is considered to be automatically
updated and superseded. In other words, in the case of a conflict or inconsistency between
information contained in this prospectus and information incorporated by reference into this
prospectus, you should rely on the information contained in the document that was filed later. We
incorporate by reference the documents listed below and any documents we file with the SEC after
the date of this prospectus under Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934, as amended (the Exchange Act), and before the date that the offering of securities by
means of this prospectus is completed (other than, in each case, documents or information deemed to
have been furnished and not filed in accordance with SEC rules):
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Annual Report on Form 10-K for the year ended December 31, 2009 (File No.
001-15185);
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Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2010 (File
No. 001-15185); as amended by Amendment
No. 1
on Form 10-Q/A
filed on June 4, 2010;
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Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2010 (File No.
001-15185);
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Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2010
(File No. 001-15185);
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Current Report on Form 8-K filed on January 22, 2010 (File No. 001-15185);
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Current Report on Form 8-K filed on March 24, 2010 (File No. 001-15185);
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Current Report on Form 8-K filed on April 22, 2010 (File No. 001-15185);
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Current Report on Form 8-K filed on July 21, 2010 (File No. 001-15185);
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Current Report on Form 8-K filed on August 23, 2010 (File No. 001-15185);
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Current Report on Form 8-K filed on October 1, 2010 (File No. 001-15185);
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Current Report on Form 8-K filed on October 21, 2010 (File No. 001-15185); and
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Current Report on Form 8-K filed on December 13, 2010 (File No. 001-15185).
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We will provide without charge to each person, including any beneficial owner, to whom this
prospectus is delivered, upon his or her written or oral request, a copy of any or all documents
referred to above which have been or may be incorporated by reference into this prospectus
excluding exhibits to those documents unless they are specifically incorporated by reference into
those documents. You can request those documents from Janet E. Denkler, 165 Madison Avenue,
Memphis, TN 38103, telephone (901) 523-4444, or you may obtain them from First Horizon National
Corporations corporate website at www.fhnc.com. Except for the documents specifically
incorporated by reference into this prospectus, information contained on our website or that can be
accessed through our website does not constitute a part of this prospectus. We have included our
website address only as an inactive textual reference and do not intend it to be an active link to
our website.
We have provided only the information incorporated by reference or presented in this
prospectus or the applicable prospectus supplement or pricing supplement. Neither we, nor any
underwriters, dealers or agents, have authorized anyone else to provide you with different
information. We may only use this prospectus to sell securities if it is accompanied by a
prospectus supplement. We are only offering these securities in jurisdictions where the offer is
permitted. You should not assume that the information in this prospectus or the applicable
prospectus supplement or pricing supplement is accurate as of any date other than the dates on the
front of those documents.
3
FORWARD-LOOKING STATEMENTS
We have included or incorporated by reference in this prospectus statements that may
constitute forward-looking statements within the meaning of the safe harbor provisions of The
Private Securities Litigation Reform Act of 1995. These forward-looking statements are not
historical facts but instead represent only our belief regarding future events, plans, goals,
expectations and estimates, many of which, by their nature, are inherently uncertain and outside of
our control. It is possible that our actual results may differ, possibly materially, from the
anticipated results indicated in or implied by these forward-looking statements. See
Risk Factors
below for information regarding important risk factors that could cause actual results to differ,
perhaps materially, from those in our forward-looking statements.
Forward-looking statements are statements that are not a representation of historical
information but rather are related to future operations, strategies, financial results, or other
developments. The words believe, expect, anticipate, intend, estimate, should, is
likely, will, going forward, and other expressions that indicate future events and trends
identify forward-looking statements. Forward-looking statements are necessarily based upon
estimates and assumptions that are inherently subject to significant business, operational,
economic and competitive uncertainties and contingencies, many of which are beyond a companys
control, and many of which, with respect to future business decisions and actions (including
acquisitions and divestitures), are subject to change. Examples of uncertainties and contingencies
include, among other important factors, general and local economic and business conditions;
recession or other economic downturns; expectations of and actual timing and amount of interest
rate movements, including the slope of the yield curve (which can have a significant impact on a
financial services institution); market and monetary fluctuations; inflation or deflation; customer
and investor responses to these conditions; the financial condition of borrowers and other
counterparties; competition within and outside the financial services industry; geopolitical
developments including possible terrorist activity; recent and future legislative and regulatory
developments; natural disasters; effectiveness of FHNs hedging practices; technology; demand for
FHNs product offerings; new products and services in the industries in which FHN operates; and
critical accounting estimates. Other factors are those inherent in originating, selling, and
servicing loans including prepayment risks, pricing concessions, fluctuation in U.S. housing
prices, fluctuation of collateral values, and changes in customer profiles. Additionally, the
actions of the Securities and Exchange Commission (SEC), the Financial Accounting Standards
Board, the Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal
Reserve System (Federal Reserve), the Federal Deposit Insurance Corporation (FDIC), Financial
Industry Regulatory Authority, U.S. Department of the Treasury, the Bureau of Consumer Financial
Protection, the Financial Stability Oversight Council, and other regulators and agencies;
regulatory and judicial proceedings and changes in laws and regulations applicable to FHN; and
FHNs success in executing its business plans and strategies and managing the risks involved in the
foregoing, could cause actual results to differ. FHN assumes no obligation to update any
forward-looking statements that are made from time to time. Actual results could differ because of
several factors, including those presented in this Forward-Looking Statements section, in other
sections of this prospectus or any applicable prospectus supplement and in documents incorporated
herein by reference.
ABOUT FIRST HORIZON NATIONAL CORPORATION
First Horizon National Corporation, a Tennessee corporation, incorporated in 1968, is
registered as a bank holding company under the Bank Holding Company Act of 1956, as amended (the
BHCA), is a financial holding company, and is supervised and regulated by the Federal Reserve.
Through its principal, directly-owned subsidiary, First Tennessee Bank National Association (the
Bank), and its other banking-related subsidiaries, First Horizon provides diversified financial
services.
First Horizons subsidiaries have about 200 business locations in over 16 U.S. states, Hong
Kong and Tokyo, excluding off-premises ATMs. Almost all of those locations are financial centers
and FTN Financial offices.
The Bank, a national banking association with principal offices in Memphis, Tennessee,
received its charter in 1864. As a national banking association, the Bank is subject to regulation
and examination by the OCC, its primary regulator. In addition, the deposits of the Bank are
insured up to allowable limits by, and the Bank is subject to regulation by, the Federal Deposit
Insurance Corporation.
4
The principal business offices of First Horizon are located at 165 Madison Avenue, Memphis,
Tennessee 38103 and its telephone number is 901-523-4444. First Horizons internet address is
www.fhnc.com. Information contained on or accessible from our web site is not incorporated into
this prospectus and does not constitute a part of this prospectus.
RISK FACTORS
Before you invest in any of our debt securities, in addition to the other information in this
prospectus, you should carefully consider each of the risk factors set forth in Item 1.A. of Part I
of First Horizon National Corporations Annual Report on Form 10-K for the Year Ended December 31,
2009, Item 1.A. of Part II of First Horizon National Corporations Quarterly Report on Form 10-Q
for the Quarterly Period Ended June 30, 2010, Item 1.A. of Part II of First Horizon National
Corporations Quarterly Report on Form 10-Q for the Quarterly Period Ended September 30, 2010 and
in any of our annual or quarterly reports for a subsequent fiscal year or fiscal quarter that we
file with the SEC and that are so incorporated. See
Where You Can Find More Information
above for
information about how to obtain a copy of these documents
.
Risks Relating to our Debt Securities
The terms of the debt securities contain limited protection for holders of the debt
securities.
The indentures under which the debt securities will be issued and the terms of the debt
securities offer limited protection to holders of the debt securities. In particular, the terms of
the indentures and the debt securities will not place any restrictions on our or our subsidiaries
ability to:
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engage in a change of control transaction;
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subject to any covenant that may be described in a prospectus supplement, issue
secured debt or secure existing unsecured debt;
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issue debt securities or otherwise incur additional unsecured indebtedness or other
obligations;
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purchase or redeem or make any payments in respect of, capital stock or other
securities ranking junior in right of payment to the debt securities;
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sell assets; or
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enter into transactions with related parties.
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Furthermore, the terms of the indentures and the debt securities will not protect holders of
the debt securities in the event that we experience changes (including significant adverse changes)
in our financial condition or results of operations, as they will not require that we or our
subsidiaries adhere to any financial tests or ratios or specified levels of net worth, revenues,
income, cash flow, or liquidity. In addition, unless otherwise provided in a prospectus supplement,
the debt securities will not provide for a step-up in interest upon, or any other protection
against, a decline in our credit ratings.
Our ability to recapitalize, incur additional debt and take a number of other actions that are
not limited by the terms of the indentures or the debt securities could negatively affect the value
of the debt securities.
Our ability to repay the debt securities will depend on receipt of dividends and
distributions from our subsidiaries, and the debt securities will be structurally
subordinated to the existing and future indebtedness of our subsidiaries.
We are a holding company and we conduct substantially all of our operations through
subsidiaries. As of September 30, 2010, 99% of our assets are held in the Bank and operations at
the Bank accounted for 100% of our revenue for the nine months ended September 30, 2010.
Furthermore, subject to any covenant that may be described in a prospectus supplement, the
indentures relating to the debt securities do not prohibit us or our subsidiaries from incurring
additional secured or unsecured indebtedness.
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We depend on dividends, distributions and other payments from our subsidiaries to fund
payments on the debt securities. In part because of the losses experienced by the Bank since 2007,
regulatory constraints generally will prevent the Bank from declaring and paying dividends to us in
2010 without regulatory approval.
Our right to participate in any distribution of assets from any subsidiary upon the
subsidiarys liquidation or otherwise is subject to the prior claims of creditors of that
subsidiary, except to the extent that we are recognized as a creditor of that subsidiary. To the
extent that we are a creditor of a subsidiary, our claims would be subordinated to any security
interest in the assets of that subsidiary and/or any indebtedness of that subsidiary senior to that
held by us. As a result, the debt securities will be structurally subordinated to all existing and
future liabilities of our subsidiaries. Our subsidiaries debt obligations were $2,547 million as
of September 30, 2010. You should look only to the assets of First Horizon as the source of payment
for the debt securities, and not those of our subsidiaries.
The trading market for the debt securities may be limited and you may be unable to sell your
securities at a price that you deem sufficient.
Unless otherwise indicated in the applicable prospectus supplement, the debt securities being
offered by this prospectus will be a new issue of securities for which there is currently no active
trading market. We do not intend to list the debt securities on any securities exchange or include
the debt securities in any automated quotation system. As a result, an active trading market for
the debt securities may not develop, or if one does develop, it may not be sustained. If an active
trading market fails to develop or cannot be sustained, you may not be able to resell your
securities at their fair market value or at all.
Whether or not a trading market for the debt securities develops, we cannot provide any
assurance about the market price of the debt securities. Several factors, many of which are beyond
our control, might influence the market value of the debt securities, including:
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our creditworthiness and financial condition;
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actions by credit rating agencies;
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the market for similar securities;
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prevailing interest rates; and
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economic, financial, geopolitical, regulatory and judicial events that affect us, the
industries and markets in which we are doing business, and the financial markets generally.
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Financial market conditions and prevailing interest rates have fluctuated in the past and are
likely to fluctuate in the future. Such fluctuations could have an adverse effect on the price of
the debt securities.
As a result of one or more of those factors, the debt securities that an investor purchases
whether in this offering or in the secondary market may trade at a discount to the price that the
investor paid for the debt securities.
6
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth information regarding our ratio of earnings to fixed charges
and ratio of earnings to combined fixed charges and preferred share dividends for the periods
shown. For purposes of determining the below ratios, earnings consist of pre-tax income from
continuing operations before adjustment for income or loss from equity investees, fixed charges,
amortization of capitalized interest, distributed income of equity investees and share of pre-tax
losses of equity investees for which charges arising from guarantees are included in fixed charges,
and adjusted for interest capitalized, preference security dividend requirements of consolidated
subsidiaries and non-controlling interest in pre-tax income of subsidiaries that have not incurred
fixed charges. Fixed charges consist of interest expensed and capitalized, amortized premium,
discounts and capitalized expenses related to indebtedness, an estimate of the interest within
rental expense, and preference security dividend requirements of consolidated subsidiaries.
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Nine Months
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Ended Sept 30,
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Year Ended December 31,
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2010
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2009
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2008
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2007
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2006
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Consolidated Ratio of Earnings to Fixed Charges
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1.2
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*
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*
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*
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1.2
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1.7
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Consolidated Ratio of Earnings to Combined
Fixed Charges and Preferred Share Dividends
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*
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*
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*
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*
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1.2
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1.6
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*
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Earnings for the reporting period were inadequate to cover total fixed charges and/or the combined
fixed charges and preferred share dividends
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USE OF PROCEEDS
We intend to use the net proceeds from the sales of the debt securities for general corporate
purposes unless otherwise specified in the applicable prospectus supplement.
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DESCRIPTION OF DEBT SECURITIES
Senior and Junior Subordinated Debt Securities
As used in this prospectus, debt securities means the debentures, notes, bonds and other
evidences of indebtedness that we may issue from time to time. The debt securities will either be
senior debt securities or junior subordinated debt securities.
As required by U.S. federal law for all bonds and notes of companies that are publicly
offered, our debt securities will be governed by a document called an indenture. Senior debt
securities will be issued under the senior indenture and junior subordinated debt securities will
be issued under the junior subordinated indenture, in each case with the specific terms and
conditions set forth in a supplemental indenture or an officers certificate. Each indenture is a
contract between us and The Bank of New York Mellon Trust Company, N.A., as the initial trustee.
The trustee has two main roles:
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First, the trustee can enforce your rights against us if we default. There are some
limitations on the extent to which the trustee acts on your behalf, described later
under
Default and Related Matters
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Second, the trustee performs administrative duties for us, such as sending you
interest payments, if any, transferring your debt securities to new buyers and sending
you notices. Unless otherwise indicated in a prospectus supplement, The Bank of New
York Mellon Trust Company, N.A. will perform these administrative duties.
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This prospectus sometimes refers to the senior indenture and the junior subordinated indenture
collectively as the indentures. The indentures and their associated documents, including the debt
securities themselves and a supplemental indenture or an officers certificate relating to a
particular series of debt securities, contain the full text of the matters summarized in this
section and any accompanying prospectus supplement. The forms of the indentures and forms of debt
securities are filed as exhibits to the registration statement of which this prospectus forms a
part, and the debt securities and supplemental indentures and officers certificates will be filed
as exhibits with future SEC filings from time to time. See
Where You Can Find More Information
above for information on how to obtain copies. Section references in the description that follows
relate to the indentures.
General
Unless otherwise specified in a prospectus supplement, the debt securities will be direct
unsecured obligations of First Horizon National Corporation. The senior debt securities will rank
equally with any of our other unsubordinated and unsecured debt. The junior subordinated debt
securities will be subordinate and rank junior in right of payment and priority to any senior debt,
as defined, and described more fully, under
Subordination
to the extent and in the manner set
forth in the junior subordinated indenture.
The indentures do not limit the aggregate principal amount of debt securities that we may
issue and provide that we may issue debt securities from time to time in one or more series, in
each case with the same or various maturities, at par or at a discount. Unless indicated in a
prospectus supplement, we may issue additional debt securities of a particular series without the
consent of the holders of the debt securities of such series outstanding at the time of the
issuance. Any such additional debt securities, together with all other outstanding debt securities
of that series, will constitute a single series of debt securities under the applicable indenture
and will be equal in ranking.
This Section Is Only a Summary
The statements and descriptions in this prospectus or in any prospectus supplement regarding
provisions of the indentures and debt securities are summaries, do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, all the provisions of the
indentures (and any amendments or supplements entered into by us from time to time) and the debt
securities, including the definitions therein of certain terms. We will include in a supplement to
this prospectus the specific terms of each series of debt securities being offered, including the
terms, if
8
any, on which a series of debt securities may be convertible into or exchangeable for shares
of our common stock or other debt securities. The indentures (together with any related amendments
or supplements thereto) and the debt securities, and not our summary of the terms, will govern the
rights of holders of the debt securities.
Terms Contained in Prospectus Supplement
The applicable prospectus supplement will contain the terms relating to the specific series of
debt securities being offered. The applicable prospectus supplement may include some or all of the
following:
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the title of the debt securities and whether they are senior debt securities or
junior subordinated debt securities;
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any limit on the aggregate principal amount of debt securities of such series;
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the person to whom any interest on a debt security of the series shall be payable,
if other than the person in whose name that debt security (or one or more predecessor
debt securities) is registered at the close of business on the regular record date for
such interest;
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the date or dates on which the principal of any debt securities is payable;
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the rate or rates at which any debt securities of the series shall bear interest, if
any, and the date or dates from which any such interest shall accrue;
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the dates on which any interest will be payable and the regular record date for
determining who is entitled to the interest payable on any interest payment date;
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the place or places where the principal of and any premium and interest on any debt
securities of the series shall be payable;
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the period or periods within which, the price or prices at which and the terms and
conditions upon which any debt securities of the series may be redeemed, in whole or in
part, at our option and, if other than by a board resolution, the manner in which our
election to redeem the debt securities shall be evidenced;
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our obligation, if any, to redeem or purchase any debt securities of the series
pursuant to any sinking fund or analogous provision and the period or periods within
which, the price or prices at which and the terms and conditions upon which any debt
securities of the series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;
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the denominations of the debt securities if other than denominations of $1,000 and
any integral multiple thereof;
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any provisions regarding the manner in which the amount of principal of or any
premium or interest on any debt securities of the series may be determined with
reference to a financial or economic measure or an index or pursuant to a formula, if
applicable;
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if the principal of or any premium or interest on any debt securities of the series
is to be payable in one or more currencies, currency units or composite currencies
other than that or those in which such debt securities are stated to be payable, the
currency, currencies, currency units or composite currencies in which the principal of
or any premium or interest on such debt securities shall be payable, the periods within
which and the terms and conditions upon which such payments are to be made, and the
amount so payable;
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if other than the entire principal amount, the portion of the principal amount of
any debt securities of the series which shall be payable upon declaration of
acceleration of the maturity;
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if the principal amount payable at the stated maturity of any debt securities of the
series will not be determinable as of any one or more dates prior to the stated
maturity, the amount which shall be deemed to be the principal amount of such debt
securities as of any such date for any purpose, including the principal amount which
shall be due and payable upon any maturity other than the stated maturity or which
shall be deemed to be outstanding as of any day prior to the stated maturity (or, in
any such case, the manner in which such amount deemed to be the principal amount shall
be determined);
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that the debt securities of the series shall be subject to full defeasance or
covenant defeasance, as described further below, if applicable;
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that any debt securities shall be issuable in whole or in part in the form of one or
more global debt securities and, in such case, the depositaries for such global debt
securities and the form of any legend or legends that shall be borne by such global
security, if applicable;
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any addition to or change in the events of default which applies to any debt
securities of the series and any change in the right of the trustee or the requisite
holders of such debt securities to declare the principal amount due and payable;
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any addition to or change in the covenants which apply to any debt securities of the
series;
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the terms and conditions, if any, pursuant to which the junior subordinated debt
securities of the series are convertible for shares of our common stock or other debt
securities;
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any changes in or additions to the subordination provisions applicable to the junior
subordinated debt securities; and
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any other terms of the debt securities not inconsistent with the indenture.
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Unless otherwise specified in the applicable prospectus supplement, the debt securities will
not be listed on any securities exchange. Debt securities may bear interest at a fixed rate or a
variable rate, as specified in the applicable prospectus supplement. In addition, if specified in
the applicable prospectus supplement, we may sell debt securities bearing no interest or interest
at a rate that at the time of issuance is below the prevailing market rate or at a discount below
their stated principal amount. We will describe in the applicable prospectus supplement any
material special federal income tax considerations applicable to any such discounted debt
securities.
Overview of Remainder of This Section
The remainder of this section summarizes:
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Additional mechanics
relevant to the debt securities under normal circumstances,
such as how you transfer ownership and where we make payments;
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Your rights under several
special situations
, such as if we merge with another
company, or if we want to change a term of the debt securities;
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Your rights if we default
or experience other financial difficulties; and
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The
subordination
of the junior subordinated debt securities relative to senior
indebtedness issued by us.
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Additional Mechanics
Form
The debt securities will be initially issued as a registered global security as described
below under
What Is a Global Security?
unless otherwise specified in the applicable prospectus
supplement. If any debt securities cease to be issued in registered global form, they will be
issued in fully registered form without coupons
(Section 302)
, although we may issue the debt
securities in bearer form if so specified in the applicable prospectus supplement. Debt securities
will be issued in denominations of $1,000 and any integral multiple thereof, unless otherwise
specified in the applicable prospectus supplement.
(Section 302)
Exchange and Transfer
You may have fully registered debt securities broken into more debt securities of smaller
denominations (but not into denominations smaller than any minimum denomination applicable to the
debt securities) or combined into fewer debt securities of larger denominations, as long as the
total principal amount is not changed. This is called an exchange.
(Section 305)
You may exchange or transfer your fully registered debt securities at the corporate trust
office of the registrar. The registrar acts as our agent for registering debt securities in the
names of holders and for transferring and exchanging debt securities, as well as maintaining the
list of registered holders. The paying agent acts as the agent for paying interest, principal and
any other amounts on debt securities. Unless otherwise specified in the applicable prospectus
supplement, the trustee will perform the roles of registrar and paying agent, and will perform
other administrative functions. We may change these appointments to another entity or perform them
ourselves. (
Section 305
)
We may designate additional or alternative registrars or paying agents, acceptable to the
trustee, and they would be named in the applicable prospectus supplement. We may cancel the
designation of any particular registrar or paying agent. We may also approve a change in the office
through which any registrar or paying agent acts. We must maintain a paying agent office at the
place of payment for each series of debt securities.
(Sections 305 and 1002)
There is no service charge for exchanges and transfers
. You will not be required to pay a
service charge to transfer or exchange debt securities, but you may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection with the
exchange or transfer.
(Section 305)
At certain times, you may not be able to transfer or exchange your debt securities
. If we
redeem any series of debt securities, or any part of any series, then we may prevent you from
transferring or exchanging these debt securities for certain periods. We may do this during the
period beginning 15 days before the day we mail the notice of redemption and ending at the close of
business on the day of that mailing, in order to freeze the list of holders so we can prepare the
mailing. We may refuse to register transfers or exchanges of debt securities selected for
redemption, except that we will continue to permit transfers and exchanges of the unredeemed
portion of any security being partially redeemed. We may also refuse to issue, register transfers
or exchange debt securities that has been surrendered for repayment, except the portion that is not
to be repaid.
(Section 305)
Replacing Your Lost or Destroyed Certificates
If you bring a mutilated certificate to the registrar, we will issue a new certificate to you
in exchange for the mutilated one.
(Section 306)
If you claim that a certificate has been lost, completely destroyed, or wrongfully taken from
you, then the trustee will give you a replacement certificate if you meet our and the trustees
requirements, including satisfactory evidence of loss, destruction or theft. Also, we and the
trustee may require you to provide reasonable security or indemnity to protect us and the trustee
from any loss we may incur from replacing your certificates.
(Section 306)
In either case, we may also charge you for our expenses in replacing your security and for any
tax or other governmental charge that may be incurred.
(Section 306)
11
Payment and Paying Agents
We will pay interest to you if you are a direct holder listed in the registrars records at
the close of business on a particular day in advance of each due date for interest, even if you no
longer own the security on the interest due date. That particular day is called the regular record
date and is stated in the applicable prospectus supplement.
(Section 307).
Holders buying and
selling debt securities must work out between them how to compensate for the fact that we will pay
all the interest for an interest period to the one who is the registered holder on the record date.
We will pay interest, principal and any other money due on the debt securities of a series at
the place of payment specified in the applicable prospectus supplement for that series. You must
make arrangements to have your payments picked up at that office. We may also choose to pay
interest by mailing checks. If we have designated additional paying agents, they will be named in
the applicable prospectus supplement. We may cancel the designation of any particular paying agent
or approve a change in the office through which any paying agent acts, but we must have a paying
agent in each place of payment for the debt securities.
(Section 1002)
All money we forward to the trustee or a paying agent that remains unclaimed will,
at our request, be repaid to us at the end of two years after the amount was due to the direct
holder. After that two-year period, you may look only to us as an unsecured general creditor for
payment and not to the trustee, any other paying agent or anyone else.
(Section 1003)
We will make payments on a global debt security in accordance with the applicable policies of
the depositary as in effect from time to time. Under those policies, we will pay directly to the
depositary, or its nominee, and not to any indirect owners who own beneficial interests in the
global debt security. An indirect owners right to receive those payments will be governed by the
rules and practices of the depositary and its participants, as described below in the section
entitled
What Is a Global Security?
.
Street name and other indirect holders should consult their banks or brokers for information
on how they will receive payments.
Notices
We and the trustee will send notices regarding the debt securities only to direct holders,
using their addresses as listed in the register kept at the office of the registrar.
(Section 106)
Special Situations
Mergers and Similar Transactions
We are generally permitted to consolidate or merge into another company. We are also permitted
to convey, transfer or lease our properties and assets substantially as an entirety to another
company. However, we may not take any of these actions unless the company certifies to the trustee
that the following conditions are met:
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the successor company (if any) or the Person which acquires our properties and
assets is a corporation, partnership or other entity, and is organized and validly
existing under the laws of the United States of America, any State thereof or the
District of Columbia and it expressly assumes our obligations on the debt securities;
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immediately after giving effect to the transaction, no event of default (and no
event which, after notice or lapse of time or both, would become an event of default)
shall have happened and be continuing
(Section 801)
; and
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if as a result of such transaction, properties or assets of ours would become
subject to a mortgage, pledge, lien, security interest or other encumbrance not
permitted by the indenture, we or our successor will take such steps as may be
necessary to secure the debt securities equally and ratably with all debt secured
thereby.
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Modification and Waiver of Your Contractual Rights
Under certain circumstances, we can make changes to the indentures and the debt securities.
Some types of changes require the approval of each security holder affected, some require approval
by a vote of the holders of not less than a majority in principal amount of the outstanding debt
securities of the particular series affected, and some changes do not require any approval at all.
(Sections 901 and 902)
Changes Requiring Your Approval
. First, there are changes that cannot be made to debt
securities without the consent of each holder affected. These include changes that:
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reduce the percentage of holders of debt securities who must consent to a waiver or
amendment of the indenture;
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reduce the rate of interest on any debt security or change the time for payment of
interest;
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reduce the principal or premium due on any debt security or change the stated
maturity date of any security;
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reduce the amount of, or postpone the date fixed for, the payment of sinking funds;
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change the place or currency of payment on a debt security;
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change the right of holders to waive an existing default by majority vote;
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modify the provisions of the indenture with respect to the subordination of the debt
securities in a manner adverse to you;
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impair your right to sue for payment; or
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make any change to this list of changes that requires your specific approval.
(Section 902)
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Changes Requiring a Vote of Not Less Than a Majority
. The second type of change to the
indentures and the debt securities requires a vote in favor by security holders owning not less
than a majority of the principal amount of the particular series affected. Most changes fall into
this category, except for clarifying changes and certain other specified changes that would not
adversely affect holders of the debt securities in any material respect (see
Changes Not Requiring
Vote of Holders
) . Not less than a majority vote is also required to waive any past default,
except a failure to pay principal or interest and default in the certain covenants and provisions
of the indenture that cannot be amended without the consent of the holder of each security.
(Sections 513 and 902)
Changes Not Requiring Vote of Holders
. The third type of change to the indentures and the
debt securities do not require a vote of any holders. These include changes that:
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evidence the succession of another person to the company;
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add to the covenants of the company for the benefit of the holders;
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add any additional events of default for the benefit of the holders;
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permit or facilitate the issuance of securities in bearer form, registrable or not
registrable, and with or without interest coupons;
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permit or facilitate the issuance of securities in uncertificated form;
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add any guarantees for the benefit of the holders;
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secure the securities;
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evidence and provide for the acceptance of appointment by a successor trustee;
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change any provisions to comply with the rules or regulations on any securities
exchange or automated quotation system on which any securities may be listed or traded;
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cure any ambiguity, correct or supplement any provision which may be defective or
inconsistent with other provisions in the indenture;
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do not adversely affect holders of the debt securities in any material respect; and
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permit or facilitate the satisfaction and discharge or defeasance or covenant
defeasance.
(Section 901)
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Further Details Concerning Voting
. When taking a vote, we will use the following rules to
decide how much principal amount to attribute to a debt security:
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For original issue discount debt securities, we will use the principal amount that
would be due and payable on the date in question if the maturity of the debt securities
were accelerated to that date because of a default.
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For debt securities the principal amount of which is not determinable, an amount
determined in the manner prescribed for such debt security.
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For debt securities denominated in one or more foreign currencies, currency units or
composite currencies, we will use the U.S. dollar equivalent determined on the date of
original issuance of these debt securities.
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Debt securities will not be considered outstanding, and therefore not eligible to vote, if we
have deposited or set aside in trust for you money for their payment or redemption.
(Section 101)
We will generally be entitled to set any day as a record date for the purpose of determining
the holders of outstanding debt securities that are entitled to vote or take other action under the
indenture. If we set a record date for a vote or other action to be taken by holders of a
particular series, that vote or action may be taken only by persons who are holders of outstanding
debt securities of that series on the record date and must be taken within 180 days following the
record date.
(Section 104)
Street name and other indirect holders, including holders of any debt securities issued as a
global security, should consult their banks or brokers for information on how approval may be
granted or denied if we seek to change the indenture or the debt securities or request a waiver.
Subordination
In the case of junior subordinated debt securities, the payment of principal, any premium and
interest on the debt securities will be subordinated in right of payment to the prior payment in
full of all our senior debt. This means that in certain circumstances where we may not be making
payments on all of our senior debt as they come due, the holders of all our senior debt will be
entitled to receive payment in full of all amounts that are due or will become due on the senior
debt before you and the other direct holders of junior subordinated debt securities will be
entitled to receive any amounts on such debt securities. These circumstances include:
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Any liquidation, dissolution or winding up of our company.
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An assignment or marshalling of our assets and liabilities for the benefit of our
creditors.
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We file for bankruptcy or certain other events in bankruptcy, insolvency or similar
proceedings occur.
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The maturity of the debt securities is accelerated. For example, the entire
principal amount of a series of debt securities may be declared to be due and
immediately payable or may be automatically accelerated due to an event of default.
(Sections 1402 and 1403)
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The applicable prospectus supplement relating to any offering of junior subordinated debt
securities will describe the specific subordination provisions. However, unless otherwise noted in
the applicable prospectus supplement, junior subordinated debt securities will be subordinate and
junior in right of payment to any existing and outstanding senior debt of First Horizon National
Corporation.
In addition, we are not permitted to make payments of principal, any premium or interest on
the junior subordinated debt securities if we default in our obligation to make payments on senior
debt and do not cure such default, or if an event of default that permits the holders of senior
debt to accelerate the maturity of the senior debt occurs.
(Sections 1401, 1402 and 1404)
These subordination provisions mean that if we are insolvent a holder of our senior debt may
ultimately receive out of our assets more than a holder of the same amount of our subordinated debt
and a creditor of ours that is owed a specific amount but who owns neither our senior debt nor the
debt securities may ultimately receive less than a holder of the same amount of senior debt.
The junior subordinated indenture defines senior debt, with respect to any series of junior
subordinated debt securities, as the principal of (and premium, if any) and interest, on debt,
which includes, among other items, all indebtedness and obligations of, or guaranteed or assumed
by, First Horizon National Corporation for borrowed money or evidenced by bonds, debentures, notes
or other similar instruments, whether incurred on or prior to the date of the junior subordinated
indenture or thereafter incurred; provided, however, that senior debt shall not be deemed to
include any debt that by its terms is subordinate to, or ranks equally with, the subordinated debt
securities of such series.
(Section 101)
Restrictive and Maintenance Covenants
We will describe any material restrictive covenants for any series of debt securities in the
applicable prospectus supplement. Unless otherwise indicated in the applicable prospectus
supplement, the debt securities will not be entitled to have the benefit of any covenant that
restricts or limits our business or operations. See
Risk Factors Risks Related to our Debt
Securities The terms of the debt securities contain limited protection for holders of the debt
securities
.
Discharge and Defeasance of Our Obligations
The following discussion of full defeasance and covenant defeasance will be applicable to your
series of debt securities only if we choose to have them apply to that series. If we do so choose,
we will state that in the applicable prospectus supplement.
(Section 1301)
Full Defeasance
If there is a change in federal tax law, as described below, we can legally release ourselves
from any payment or other obligations on the debt securities, called full defeasance, if we put
in place the following other arrangements for you to be repaid:
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We must deposit in trust for your benefit and the benefit of all other direct
holders of the debt securities a combination of money and U.S. government or U.S.
government agency notes or bonds that will generate enough cash to make interest,
principal and any other payments on the debt securities on their various due dates.
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There must be a change in current federal tax law or an IRS ruling that lets us make
the above deposit without causing you to be taxed on the debt securities any
differently than if we did not make the deposit and just repaid the debt securities in
the ordinary course.
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We must deliver to the trustee a legal opinion of our counsel confirming the tax law
change described above.
(Sections 1302 and 1304)
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If we accomplish full defeasance, as described above, you would have to rely solely on the
trust deposit for repayment on the debt securities. You could not look to us for repayment in the
event of any shortfall. In the case of junior subordinated debt securities, you would also be
released from the subordination provisions on these debt securities.
Covenant Defeasance
Under current federal tax law, we can make the same type of deposit described above and be
released from some of the restrictive covenants in the debt securities. This is called covenant
defeasance. In that event, you would lose the protection of those restrictive covenants but would
gain the protection of having money and debt securities set aside in trust to repay the debt
securities and, in the case of junior subordinated debt securities, you would be released from the
subordination provisions of those debt securities. In order to achieve covenant defeasance, we must
do the following:
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We must deposit in trust for your benefit and the benefit of all other direct
holders of the debt securities a combination of money and U.S. government or U.S.
government agency notes or bonds that will generate enough cash to make interest,
principal and any other payments on the debt securities on their various due dates.
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We must deliver to the trustee a legal opinion of our counsel confirming that under
current federal income tax law we may make the above deposit without causing you to be
taxed on the debt securities any differently than if we did not make the deposit and
just repaid the debt securities ourselves.
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If we accomplish covenant defeasance, the following provisions of the indenture and the debt
securities would no longer apply:
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Any covenants applicable to the series of debt securities and described in the
applicable prospectus supplement.
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The events of default relating to breach of covenants and acceleration of the
maturity of other debt.
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The defaults relating to breach of covenants as applicable to junior subordinated
debt securities.
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The subordination provisions on the junior subordinated debt securities.
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If we accomplish covenant defeasance, you can still look to us for repayment of the debt
securities if a shortfall in the trust deposit occurs. In fact, if one of the remaining events of
default occurred (such as our bankruptcy) and the debt securities become immediately due and
payable, there may be such a shortfall. Depending on the event causing the default, you may not be
able to obtain payment of the shortfall.
(Sections 1303 and 1304)
Redemption
We May Choose to Redeem Your Debt Securities
We may be able to redeem your debt securities before their normal maturity. If we have this
right with respect to your specific debt securities, the right will be described in the applicable
prospectus supplement. It will also specify when we can exercise this right and how much we will
have to pay in order to redeem your debt securities.
If we choose to redeem your debt securities, we will mail written notice to you not less than
30 days nor more than 60 days prior to redemption
(Section 1104)
. Also, you may be prevented from
exchanging or transferring your debt securities when they are subject to redemption, as described
under
Additional MechanicsExchange and Transfer
above.
(Section 305)
16
Default and Related Matters
Ranking Compared to Other Creditors
The debt securities are not secured by any of our property or assets. Accordingly, your
ownership of debt securities means you are one of our unsecured creditors. The senior debt
securities will not be subordinated to any of our other debt obligations and therefore rank equally
with all our other unsecured and unsubordinated indebtedness. The junior subordinated debt
securities will be subordinate and junior in right of payment to any of our senior debt. The
trustee has a right to receive payment for its administrative services prior to any payment to
security holders after a default.
(Section 506)
Events of Default Senior Debt Securities
You will have special rights if an event of default occurs and is not cured, as described in
this subsection. The term event of default with respect to any series of senior debt securities
means any of the following:
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We fail to make any interest payment on any senior debt security of that series when
such interest becomes due, and we do not cure this default within 30 days.
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We fail to make any payment of principal or premium on any senior debt security of
that series when it is due at the maturity.
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We do not deposit a sinking fund payment with regards to any senior debt security of
that series on the due date, but only if the payment is required under provisions
described in the applicable prospectus supplement.
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We fail to comply with covenants or warranties in the senior indenture (other than a
covenant or warranty solely for the benefit of the senior debt securities other than
that series), and after we have been notified of the default by the trustee or holders
of not less than 25% in principal amount of that series, we do not cure the default
within 30 days.
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We or one of our significant subsidiaries (as defined below) default on any
indebtedness having an aggregate amount of at least $100,000,000, this default is
either the payment of principal or results in acceleration of the indebtedness, and
after we have been notified of the default by the trustee or holders of 25% in
principal amount of the series we do not cure the default within 30 days.
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We file for bankruptcy, or other events in bankruptcy, insolvency or reorganization
occur.
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Any other event of default provided with respect to senior debt security of that
series as described in the prospectus supplement, subject to any applicable cure
period.
(Section 501)
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A significant subsidiary is a subsidiary having, as of the last day of the most recent
calendar quarter ended at least 30 days prior to the date of such determination (or if the most
recent calendar quarter ended 30 days or less prior to the date of such determination, as of the
preceding recent calendar quarter), total assets equal to or exceeding 20% of the total assets of
First Horizon and our subsidiaries on a consolidated basis.
The senior indenture provides that, if any event of default for senior debt securities of any
series outstanding occurs and is continuing, either the trustee or the holders of not less than 25%
in principal amount of the outstanding senior debt securities of that series may declare the
principal amount (or, if the debt securities of that series are original issue discount debt
securities, such principal amount portion as the terms of that series specify) of all senior debt
securities of that series to be due and payable immediately. However, no such declaration is
required upon certain bankruptcy events. In addition, upon fulfillment of certain conditions, this
declaration may be annulled and past defaults waived by the holders of not less than a majority in
principal amount of the outstanding senior debt securities of that series on behalf of all senior
debt securities holders of that series. (
Sections 502
and
513
)
17
The senior indenture contains a provision entitling the trustee, acting under the required
standard of care, to be indemnified by the holders of any outstanding senior debt securities series
before proceeding to exercise any right or power under the senior indenture at the holders
request. (
Section 603
) The holders of a majority in principal amount of outstanding senior debt
securities of any series may direct the time, method and place of conducting any proceeding for any
remedy available to the trustee, or exercising any trust or other power conferred on the trustee,
with respect to the senior debt securities of such series. The trustee, however, may decline to
act if that direction is contrary to law or the senior indenture. (
Section 512
)
Street name and other indirect holders should consult their banks or brokers for information
on how to give notice or direction to or make a request of the trustee and how to make or cancel a
declaration of acceleration.
Events of Default Junior Subordinated Debt Securities
The principal payment on junior subordinated debt securities may be accelerated only upon an
event of default. There is no acceleration right in the case of a default in the payment of
interest or principal prior to the maturity date or a default if we fail to perform any covenant
in the junior subordinated indenture, unless a specific series of junior subordinated debt
securities provides otherwise, which will be described in the relevant prospectus supplement.
Events of Default
: The junior subordinated indenture defines an event of default as certain
events involving our bankruptcy, insolvency or reorganization and any other event of default
provided for the junior subordinated debt securities of that series. (
Section 501
). You will have
special rights if an event of default occurs and is not cured, as described in the next paragraph.
If an event of default with respect to junior subordinated debt securities of any series
occurs and is continuing, either the trustee or the holders of not less than 25% in principal
amount of the outstanding junior subordinated debt securities of that series may declare the
principal amount (or, if the debt securities of that series are original issue discount debt
securities, such principal amount portion as the terms of that series specify) of all junior
subordinated debt securities of that series to be due and payable immediately. The holders of not
less than a majority in principal amount of the outstanding junior subordinated debt securities of
that series may waive an event of default resulting in acceleration of the junior subordinated debt
securities of such series, but only if all payments due on the junior subordinated debt securities
of that series (other than those due as a result of acceleration) have been made, all defaults with
respect to junior subordinated debt securities of that series have been remedied and certain other
conditions have been met. (
Section 502
)
Subject to junior subordinated indenture provisions relating to the trustees duties, in case
a default shall occur and be continuing, the trustee will be under no obligation to exercise any of
its rights or powers under the junior subordinated indenture at the holders request or direction,
unless such holders shall have offered to the trustee reasonable indemnity. (
Section 603
) Subject
to such indemnification provisions, the holders of a majority in principal amount of the
outstanding junior subordinated debt securities of that series will 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 subordinated trustee. (
Section 512
)
Street name and other indirect holders should consult their banks or brokers for information
on how to give notice or direction to or make a request of the trustee and how to make or cancel a
declaration of acceleration.
We Will Give the Trustee Information About Defaults Annually
Every year we will give to the trustee a written statement of one of our officers certifying
that to the best of his or her knowledge we are in compliance with the indenture and the debt
securities, or else specifying any default.
(Section 1004)
Original Issue Discount Debt Securities
The debt securities may be issued as original issue discount debt securities, which will be
offered and sold at a discount from their principal amount. Only a discounted amount will be due
and payable when the trustee declares the acceleration of the maturity of these debt securities
after an event of default has occurred and continues, as described under
Default and Related
Matters
above.
18
Conversion of Convertible Debt Securities
Your debt securities may be convertible into shares of our common stock or other debt
securities if the applicable prospectus supplement so provides. If your debt securities are
convertible or exchangeable, the applicable prospectus supplement will include provisions as to
whether conversion or exchange is mandatory, at your option or at our option. The applicable
prospectus supplement would also include provisions regarding the adjustment of the number of
shares of our common stock or other debt securities you will receive upon conversion or exchange.
In addition, the applicable prospectus supplement will contain the conversion price or exchange
price and mechanisms for adjusting this price.
Governing Law
The indentures and debt securities will be governed by, and construed in accordance with, the
laws of the State of New York.
Regarding the Trustee
The senior indenture and the junior subordinated indenture provide that, except during the
continuance of an event of default, the trustee will perform only such duties as are specifically
set forth therein. Each indenture and the provisions of the Trust Indenture Act of 1939 (the TIA)
contain limitations on the rights on the trustee, should it become a creditor of ours, to obtain
payment of claims in certain cases or to realize on certain property received by it in respect of
any such claims, as security or otherwise. The trustee is permitted to engage in other
transactions; provided, however, that if it becomes subject to any conflicting interest (as defined
under the TIA), it must eliminate such conflict or resign.
Legal Ownership of Debt Securities
Unless the applicable prospectus supplement specifies otherwise, we will issue debt securities
initially in the form of a global security. However, we may elect to issue debt securities in fully
registered or bearer form or both. We refer to those who have debt securities registered in their
own names on the books that we or our agent maintain for this purpose, as the holders of those
debt securities. These persons are the legal holders of the debt securities. We refer to those who,
indirectly through others, own beneficial interests in debt securities that are not registered in
their own names as indirect holders of those debt securities. As we discuss below, indirect
holders are not legal holders, and investors in debt securities issued in book-entry form or in
street name will be indirect holders.
Street Name Holders
In the future we may terminate a global security under the circumstances specified under
What
is a Global Security?Special Situations When a Global Security Will Be Terminated
or issue debt
securities initially in non-global form. In these cases, investors may choose to hold their debt
securities in their own names or in street name. Debt securities held by an investor in street
name would be registered in the name of a bank, broker or other financial institution that the
investor chooses, and the investor would hold only a beneficial interest in those debt securities
through an account he or she maintains at that institution.
For debt securities held in street name, we will recognize only the intermediary banks,
brokers and other financial institutions in whose names the debt securities are registered as the
holders of those debt securities and we will make all payments on those debt securities to them.
These institutions pass along the payments they receive to their customers who are the beneficial
owners, but only because they agree to do so in their customer agreements or because they are
legally required to do so. Investors who hold debt securities in street name will be indirect
holders, not holders, of those debt securities.
Legal Holders
Our obligations, as well as the obligations of the trustee and those of any third parties
employed by us or the trustee, run only to the legal holders of the debt securities. We do not have
obligations to investors who hold beneficial interests in global debt securities, in street name or
by any other indirect means. This will be the case whether an
19
investor chooses to be an indirect holder of a debt security or has no choice because we are
issuing the debt securities only in global form.
For example, once we make a payment or give a notice to the holder, we have no further
responsibility for the payment or notice even if that holder is required, under agreements with
depositary participants or customers or by law, to pass it along to the indirect holders but does
not do so. Similarly, if we want to obtain the approval of the holders for any purpose for
example, to amend the applicable indenture or to relieve us of the consequences of a default or of
our obligation to comply with a particular provision of the applicable indenture we would seek
approval only from the holders, and not the indirect holders, of the debt securities. Whether and
how the holders contact the indirect holders is up to the holders.
When we refer to you, we mean those who invest in the debt securities being offered by this
prospectus, whether they are the holders or only the indirect holders of those debt securities.
When we refer to your debt securities, we mean the debt securities in which you hold a direct or
indirect interest.
Special Considerations for Indirect Holders
If you hold debt securities through a bank, broker or other financial institution, either in
book-entry form or in street name, you should check with your own institution to find out:
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how it handles debt securities payments and notices;
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whether it imposes fees or charges;
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how it would handle a request for the holders consent, if ever required;
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how it would exercise rights under the debt securities if there were a default or
other event triggering the need for holders to act to protect their interests; and
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if the debt securities are in book-entry form, how the depositarys rules and
procedures will affect these matters.
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Book-Entry Holders
If we issue debt securities in global i.e., book-entry form, the debt securities will be
represented by one or more global debt securities registered in the name of a financial institution
that holds them as depositary on behalf of other financial institutions that participate in the
depositarys book-entry system. These participating institutions, in turn, hold beneficial
interests in the debt securities on behalf of themselves or their customers.
For registered debt securities, only the person in whose name a debt security is registered is
recognized under the indenture as the holder of that debt security. Debt securities issued in
global form will be issued in the form of a global security registered in the name of the
depositary or its nominee. Consequently, for debt securities issued in global form, we will
recognize only the depositary as the holder of the debt securities and we will make all payments on
the debt securities to the depositary. The depositary passes along the payments it receives to its
participants, which in turn pass the payments along to their customers who are the beneficial
owners. The depositary and its participants do so under agreements they have made with one another
or with their customers; they are not obligated to do so under the terms of the indenture.
As a result, investors in a book-entry security will not own debt securities directly.
Instead, they will own beneficial interests in a global security, through a bank, broker or other
financial institution that participates in the depositarys book-entry system or holds an interest
through a participant. As long as the debt securities are issued in global form, investors will be
indirect holders, and not holders, of the debt securities.
20
What Is a Global Security?
A global security is a security that represents one or more debt securities and is held by a
depositary. Generally, all debt securities represented by the same global securities will have the
same terms.
Each debt security issued in book-entry form will be represented by a global security that we
deposit with and register in the name of a financial institution that we select or its nominees.
The financial institution that we select for this purpose is called the depositary. Unless we
specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York,
New York, known as
DTC
, will be the depositary for all debt securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the
depositary, its nominee or a successor depositary, unless special termination situations arise. We
describe those situations below under
Special Situations When a Global Security Will Be
Terminated
. As a result of these arrangements, the depositary, or its nominee, will be the sole
registered owner and holder of all debt securities represented by a global security, and investors
will be permitted to own only beneficial interests in a global security. Beneficial interests must
be held by means of an account with a broker, bank or other financial institution that in turn has
an account with the depositary or with another institution that does. Thus, an investor whose
security is represented by a global security will not be a holder of the debt security, but only an
indirect holder of a beneficial interest in the global security.
If the applicable prospectus supplement for a particular debt security indicates that the debt
security will be issued in global form only, then the debt security will be represented by a global
security at all times unless and until the global security is terminated. We describe the
situations in which this can occur below under
Special Situations When a Global Security Will Be
Terminated
.
DTC has advised us as follows: DTC is a limited-purpose trust company organized under the New
York Banking Law, a banking organization within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a clearing corporation within the meaning of the New York Uniform
Commercial Code and a clearing agency registered pursuant to the provisions of Section 17A of the
Exchange Act. DTC holds securities that DTC participants deposit with DTC. DTC also facilitates the
post-trade settlement among DTC participants of sales and other securities transactions in
deposited securities through electronic computerized book-entry transfers and pledges between DTC
participants accounts. This eliminates the need for physical movement of securities certificates.
DTC participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. DTC is a wholly owned subsidiary
of The Depository Trust & Clearing Corporation (DTCC). DTCC is the holding company for DTC,
National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are
registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Indirect
access to the DTC system is also available to others such as both U.S. and non-U.S. brokers and
dealers, banks, trust companies and clearing corporations that clear through or maintain a
custodial relationship with a DTC participant, either directly or indirectly. The rules applicable
to DTC and DTC participants are on file with the SEC.
Special Considerations for Global Securities
As an indirect holder, an investors rights relating to a global security will be governed by
the account rules of the investors financial institution and of the depositary, as well as general
laws relating to debt securities transfers. We do not recognize this type of investor as a holder
of debt securities and instead deal only with the depositary that holds the global security.
If debt securities are issued only in the form of a global security, an investor should be
aware of the following:
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An investor cannot cause the debt securities to be registered in his or her name,
and cannot obtain nonglobal certificates for his or her interest in the debt
securities, except in the special situations we describe below;
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An investor will be an indirect holder and must look to his or her own bank or
broker for payments on the debt securities and protection of his or her legal rights
relating to the debt securities, as we describe under
Legal Ownership of Debt
Securities
above;
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21
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An investor may not be able to sell interests in the debt securities to some
insurance companies and to other institutions that are required by law to own their
debt securities in non-book-entry form;
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An investor may not be able to pledge his or her interest in a global security in
circumstances where certificates representing the debt securities must be delivered to
the lender or other beneficiary of the pledge in order for the pledge to be effective;
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The depositarys policies, which may change from time to time, will govern payments,
transfers, exchanges and other matters relating to an investors interest in a global
security. We and the trustee have no responsibility for any aspect of the depositarys
actions or for its records of ownership interests in a global security. We and the
trustee also do not supervise the depositary in any way;
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The depositary may (and we understand that DTC will) require that those who purchase
and sell interests in a global security within its book-entry system use immediately
available funds and your broker or bank may require you to do so as well; and
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Financial institutions that participate in the depositarys book-entry system, and
through which an investor holds its interest in a global security, may also have their
own policies affecting payments, notices and other matters relating to the debt
securities. There may be more than one financial intermediary in the chain of ownership
for an investor. We do not monitor and are not responsible for the actions of any of
those intermediaries.
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Special Situations When a Global Security Will Be Terminated
In the special situations described below, the global security will terminate and interests in
it will be exchanged for physical certificates representing those interests. After that exchange,
the choice of whether to hold debt securities directly or in street name will be up to the
investor. Investors must consult their own bank or brokers to find out how to have their interests
in debt securities transferred to their own name, so that they will be direct holders. We have
described the rights of holders and street name investors above under
Legal Ownership of Debt
Securities
.
The global security will terminate when the following special situations occur:
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if the depositary notifies us that it is unwilling, unable or no longer permitted
under applicable law to continue as depositary for that global security and we do not
appoint another institution to act as depositary within 90 days;
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if we notify the trustee that we wish to terminate that global security; or
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if an event of default has occurred with regard to debt securities represented by
that global security and has not been cured or waived. We discuss defaults above under
Default and Related Matters
.
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The applicable prospectus supplement may also list additional situations for terminating a
global security that would apply only to the particular series of debt securities covered by the
prospectus supplement. When a global security terminates, the depositary and not we or the
trustee is responsible for deciding the names of the institutions that will be the initial
direct holders. (
Section 305
)
PLAN OF DISTRIBUTION
We may sell debt securities to or through underwriters, including one of its affiliates, to be
designated at various times, and also may sell debt securities directly to other purchasers or
through agents. We conduct our investment banking, institutional and capital markets businesses
through our various bank, broker-dealer and non-bank subsidiaries, including FTN Financial
Securities Corp. and First Tennessee Brokerage, Inc. The distribution of debt securities may be
effected at various times in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
22
The prospectus supplement for the debt securities we sell will describe that offering,
including:
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the name or names of any underwriters, managing underwriters, dealers or agents; the
purchase price and the proceeds to us from that sale;
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any underwriting discounts, commissions or agents fees and other items constituting
underwriters or agents compensation;
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any initial public offering price and any discounts or concessions allowed or reallowed
or paid to dealers; and
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any securities exchanges on which the debt securities may be listed.
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VALIDITY OF DEBT SECURITIES
Unless otherwise indicated in the applicable prospectus supplement, the validity of the debt
securities will be passed upon for us by our counsel, Sullivan & Cromwell LLP, and/or by Charles T.
Tuggle, Jr., Executive Vice President and General Counsel of First Horizon National Corporation.
Sullivan & Cromwell LLP will rely upon the opinion of Mr. Tuggle as to matters of Tennessee law,
and Mr. Tuggle will rely upon the opinion of Sullivan & Cromwell LLP as to matters of New York law.
As of November 22, 2010, Mr. Tuggle beneficially owned
225,205 shares of our common stock,
including shares that could be acquired upon the exercise of options and shares held in our 401(k)
Plan, and also including certain salary stock unit awards that will be paid in cash based on the
future market value of our shares. Sullivan & Cromwell LLP regularly performs legal services for
First Horizon National Corporation.
EXPERTS
Our consolidated statements of condition as of December 31, 2009 and 2008, and the related
consolidated statements of income, shareholders equity and cash flows for each of the years in the
three-year period ended December 31, 2009, and the effectiveness of
internal control over financial reporting as of December 31, 2009, included in our Current Report
on Form 8-K, dated December 13, 2010, and incorporated by reference herein, have been incorporated
by reference herein in reliance upon the reports of KPMG LLP, independent registered public
accounting firm, and upon the authority of said firm as experts in accounting and auditing.
23
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution
The following table sets forth the various expenses to be incurred in connection with the sale
and distribution of the debt securities being registered hereby, all of which will be borne by
First Horizon National Corporation. All amounts shown are estimates.
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Filing FeeSecurities and Exchange Commission
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(1
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)
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Accounting fees and expenses
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150,000
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Legal fees and expenses
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500,000
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Printing expenses
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10,000
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Blue Sky fees and expenses
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5,000
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Rating agency fees
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690,000
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Trustee fees and expenses
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12,000
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Miscellaneous expenses
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58,000
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Total expenses
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$
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1,425,000
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(1)
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The Registrant is registering an indeterminate amount of debt securities under this
Registration Statement and in accordance with Rules 456(b) and 457(r) the Registrant is deferring
payment of any additional registration fee until the time the debt securities are sold under this
Registration Statement pursuant to a prospectus supplement.
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Item 15.
Indemnification of Directors and Officers.
Tennessee Code Annotated Sections 48-18-501 through 48-18-509 authorize a corporation to
provide for the indemnification of officers, directors, employees and agents in terms sufficiently
broad to permit indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the
Securities Act). We have adopted the provisions of the Tennessee statute pursuant to Article Six
of our Bylaws. In addition, we have a directors and officers liability insurance policy which
provides coverage sufficiently broad to permit indemnification under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the Securities Act.
Tennessee Code Annotated, Section 48-12-102, permits the inclusion in the charter of a
Tennessee corporation of a provision, with certain exceptions, eliminating the personal monetary
liability of directors to the corporation or its shareholders for breach of the duty of care. We
have adopted the provisions of the statute as Article 14 of its restated charter.
The shareholders of First Horizon have approved a provision in Article Six of the Bylaws
pursuant to which we are required to indemnify each director and any officers designated by the
Board of Directors, and advance expenses, to the maximum extent not prohibited by law. In
accordance with the foregoing, the Board of Directors is authorized to enter into individual
indemnity agreements with the directors and such officers. Such indemnity agreements have been
approved for all of the directors and certain officers.
Item 16.
Exhibits.
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(a)
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The following exhibits are filed herewith or incorporated herein by reference unless
otherwise indicated:
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Exhibit No.
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Description of Exhibit
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1.1**
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Form of Underwriting Agreement for Debt Securities.
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4.1*
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Form of Senior Debt Indenture.
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4.2*
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Form of Junior Subordinated Debt Indenture.
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5**
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Opinion of counsel regarding the validity of debt securities being registered (including
the Consent of such Counsel).
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8**
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Form of Tax Opinion (including the Consent of such Counsel).
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12.1*
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Computation of the Ratio of Earnings to Fixed Charges and Ratio of Earnings to Fixed Charges and
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II-1
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Exhibit No.
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Description of Exhibit
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Preferred Stock Dividends.
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23.1**
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Consent of counsel (included in Exhibit 5).
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23.2*
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Consent of KPMG LLP.
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24*
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Power of Attorney (included on the signature page).
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25.1*
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Form T-1 Statement of Eligibility of Trustee under the Senior Debt Indenture.
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25.2*
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Form T-1 Statement of Eligibility of Trustee under the Junior Subordinated Debt Indenture.
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*
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Filed herewith.
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**
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To be filed by post-effective amendment or under a Current Report on Form 8-K and
incorporated by reference herein.
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Item 17.
Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) To include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material change to such
information in the registration statement;
provided
,
however
, that Paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each
such post-effective amendment shall be deemed to be a new registration statement relating to
the debt securities offered therein, and the offering of such debt securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the debt
securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act to any
purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing
the information required by Section 10(a) of the Securities Act shall be deemed to be
part of and included in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of the first contract
of sale of debt securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the registration
statement relating to the debt securities in the registration statement to which that
prospectus relates, and the offering of such debt securities at that time shall be
deemed to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a
II-2
document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately prior to
such effective date.
(5) That, for the purpose of determining liability of the Registrant under the
Securities Act to any purchaser in the initial distribution of the debt securities, the
undersigned Registrant undertakes that in a primary offering of debt securities of an
undersigned Registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the debt securities to the purchaser, if the debt
securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to the purchaser and will be
considered to offer or sell such debt securities to such purchaser:
(i) Any preliminary prospectus or prospectus of an undersigned Registrant relating
to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf
of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned Registrant or its debt securities
provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the
undersigned Registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act, each
filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the debt securities offered therein, and the
offering of such debt securities at that time shall be deemed to be the initial bona fide
offering thereof.
(7) Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the debt securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, First Horizon National Corporation
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing this Post-Effective Amendment No. 1 to the Registration Statement (File No. 333-150448) on
Form S-3 and has duly caused this Post-Effective Amendment No. 1 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Memphis, State of Tennessee, on the
13th day of December , 2010.
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FIRST HORIZON NATIONAL CORPORATION
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By:
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/s/
William C. Losch III
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Name:
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William C. Losch III
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Title:
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Executive Vice President and
Chief Financial
Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints William C. Losch III, James F. Keen, Clyde A. Billings, Jr. and Thomas C. Adams, Jr.,
and each of them severally, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him or her and in his or her name, place and stead,
in any and all capacities to sign this Post-Effective Amendment No. 1 to the Registration Statement
(File No. 333-150448) on Form S-3 of First Horizon National Corporation and any and all further
amendments to that Registration Statement (including further post-effective amendments thereto) and
to file the same, with the exhibits thereto, and other documents in connection herewith, including
any related registration statement filed pursuant to Rule 462(b) of the Securities Act, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing required or necessary
to be done in and about the foregoing as fully for all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or his or her substitute substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Post-Effective Amendment No. 1 has
been signed by the following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/ D. Bryan Jordan
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President, Chief
Executive Officer,
and Director
(Principal
Executive Officer)
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December 13, 2010
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D. Bryan Jordan
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/s/ William C. Losch III
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Executive Vice
President and Chief
Financial Officer
(Principal
Financial Officer)
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December 13, 2010
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William C. Losch III
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/s/ James F. Keen
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Executive Vice
President and Chief
Accounting Officer
(Principal
Accounting Officer)
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December 13, 2010
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James F. Keen
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Signature
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Title
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Date
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*
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Chairman of the
Board and Director
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December 13, 2010
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Michael D. Rose
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/
s
/
Mark A. Emkes
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Director
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December 13, 2010
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Mark A. Emkes
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*
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Director
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December 13, 2010
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Robert B. Carter
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*
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Director
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December 13, 2010
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Simon F. Cooper
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*
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Director
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December 13, 2010
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James A. Haslam, III
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*
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Director
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December 13, 2010
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R. Brad Martin
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*
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Director
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December 13, 2010
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Vicki R. Palmer
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*
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Director
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December 13, 2010
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Colin V. Reed
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*
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Director
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December 13, 2010
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William B. Sansom
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*
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Director
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December 13, 2010
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Luke Yancy III
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* By:
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/s/
Clyde A. Billings, Jr.
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Clyde A. Billings, Jr.
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as Attorney-in-Fact
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Exhibit 4.1
FIRST HORIZON NATIONAL CORPORATION
TO
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
INDENTURE
Dated as of
SENIOR DEBT SECURITIES
Certain Sections of this Indenture Relating to Sections 310 Through 318, Inclusive, of the
Trust Indenture Act of 1939:
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Trust Indenture Act Section
|
|
Indenture Section
|
Section 310
|
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(a)(1)
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609
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(a)(2)
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609
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(b)
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608
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610
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Section 311
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(a)
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613
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(b)
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613
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Section 312
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(a)
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701
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702
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(b)
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702
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(c)
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702
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Section 313
|
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(a)
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703
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(b)
|
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703
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(c)
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703
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(d)
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703
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Section 314
|
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(a)
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704
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(a)(4)
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101
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1004
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(b)
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Not Applicable
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(c)(1)
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102
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(c)(2)
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102
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(c)(3)
|
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Not Applicable
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(d)
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Not Applicable
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(e)
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102
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Section 315
|
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(a)
|
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601
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(b)
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602
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(c)
|
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601
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(d)
|
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601
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(e)
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514
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Section 316
|
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(a)
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101
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(a)(1) (A)
|
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502
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512
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(a)(1) (B)
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513
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(a)(2)
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Not Applicable
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(b)
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508
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(c)
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104
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Section 317
|
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(a)(1)
|
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503
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(a)(2)
|
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504
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(b)
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|
1003
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Section 318
|
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(a)
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|
107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
-i-
TABLE OF CONTENTS
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Page
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ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 101.
|
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Definitions
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1
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SECTION 102.
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Compliance Certificates and Opinions
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7
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SECTION 103.
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Form of Documents Delivered to Trustee
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7
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SECTION 104.
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Acts of Holders; Record Dates
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8
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SECTION 105.
|
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Notices, Etc., to Trustee and Company
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9
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SECTION 106.
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Notice to Holders; Waiver
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10
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SECTION 107.
|
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Conflict with Trust Indenture Act
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10
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SECTION 108.
|
|
Effect of Headings and Table of Contents
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11
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SECTION 109.
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Successors and Assigns
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11
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SECTION 110.
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Separability Clause
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11
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SECTION 111.
|
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Benefits of Indenture
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11
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SECTION 112.
|
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Governing Law
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11
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SECTION 113.
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Legal Holidays
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11
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SECTION 114.
|
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Force Majeure
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11
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|
SECTION 115.
|
|
Immunity of Incorporators, Limited Partners, Shareholders, Trustees, Directors and Officers
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12
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ARTICLE TWO
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SECURITY FORMS
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SECTION 201.
|
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Forms Generally
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12
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SECTION 202.
|
|
Form of Face of Security
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|
12
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|
SECTION 203.
|
|
Form of Reverse of Security
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|
|
14
|
|
SECTION 204.
|
|
Form of Legend for Global Securities in Global Form
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|
|
17
|
|
SECTION 205.
|
|
Form of Trustees Certificate of Authentication
|
|
|
18
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|
|
ARTICLE THREE
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THE SECURITIES
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SECTION 301.
|
|
Amount Unlimited; Issuable in Series
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|
18
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|
SECTION 302.
|
|
Denominations
|
|
|
21
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|
SECTION 303.
|
|
Execution, Authentication, Delivery and Dating
|
|
|
21
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|
SECTION 304.
|
|
Temporary Securities
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|
|
22
|
|
SECTION 305.
|
|
Registration; Registration of Transfer and Exchange
|
|
|
23
|
|
SECTION 306.
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
24
|
|
SECTION 307.
|
|
Payment of Interest; Interest Rights Preserved
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|
|
25
|
|
SECTION 308.
|
|
Persons Deemed Owners
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|
|
26
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|
SECTION 309.
|
|
Cancellation
|
|
|
26
|
|
SECTION 310.
|
|
Computation of Interest
|
|
|
26
|
|
SECTION 311.
|
|
CUSIP Numbers
|
|
|
26
|
|
-ii-
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Page
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ARTICLE FOUR
|
|
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SATISFACTION AND DISCHARGE
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SECTION 401.
|
|
Satisfaction and Discharge of Indenture
|
|
|
26
|
|
SECTION 402.
|
|
Application of Trust Money
|
|
|
27
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|
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|
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|
|
ARTICLE FIVE
|
|
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|
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|
|
REMEDIES
|
|
|
|
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|
SECTION 501.
|
|
Events of Default
|
|
|
28
|
|
SECTION 502.
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
29
|
|
SECTION 503.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
30
|
|
SECTION 504.
|
|
Trustee May File Proofs of Claim
|
|
|
31
|
|
SECTION 505.
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
|
31
|
|
SECTION 506.
|
|
Application of Money Collected
|
|
|
31
|
|
SECTION 507.
|
|
Limitation on Suits
|
|
|
32
|
|
SECTION 508.
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
32
|
|
SECTION 509.
|
|
Restoration of Rights and Remedies
|
|
|
32
|
|
SECTION 510.
|
|
Rights and Remedies Cumulative
|
|
|
32
|
|
SECTION 511.
|
|
Delay or Omission Not Waiver
|
|
|
33
|
|
SECTION 512.
|
|
Control by Holders
|
|
|
33
|
|
SECTION 513.
|
|
Waiver of Past Defaults
|
|
|
33
|
|
SECTION 514.
|
|
Undertaking for Costs
|
|
|
33
|
|
SECTION 515.
|
|
Waiver of Usury, Stay or Extension Laws
|
|
|
34
|
|
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|
|
ARTICLE SIX
|
|
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|
|
THE TRUSTEE
|
|
|
|
|
|
|
|
|
|
|
|
SECTION 601.
|
|
Certain Duties and Responsibilities
|
|
|
34
|
|
SECTION 602.
|
|
Notice of Defaults
|
|
|
35
|
|
SECTION 603.
|
|
Certain Rights of Trustee
|
|
|
35
|
|
SECTION 604.
|
|
Not Responsible for Recitals or Issuance of Securities
|
|
|
36
|
|
SECTION 605.
|
|
May Hold Securities
|
|
|
36
|
|
SECTION 606.
|
|
Money Held in Trust
|
|
|
37
|
|
SECTION 607.
|
|
Compensation and Reimbursement
|
|
|
37
|
|
SECTION 608.
|
|
Conflicting Interests
|
|
|
37
|
|
SECTION 609.
|
|
Corporate Trustee Required; Eligibility
|
|
|
37
|
|
SECTION 610.
|
|
Resignation and Removal; Appointment of Successor
|
|
|
38
|
|
SECTION 611.
|
|
Acceptance of Appointment by Successor
|
|
|
39
|
|
SECTION 612.
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
40
|
|
SECTION 613.
|
|
Preferential Collection of Claims Against Company
|
|
|
40
|
|
SECTION 614.
|
|
Appointment of Authenticating Agent
|
|
|
40
|
|
|
|
|
|
|
|
|
|
|
ARTICLE SEVEN
|
|
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|
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|
|
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|
|
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
|
|
|
|
|
|
|
|
|
SECTION 701.
|
|
Company to Furnish Trustee Names and Addresses of Holders
|
|
|
42
|
|
SECTION 702.
|
|
Preservation of Information; Communications to Holders
|
|
|
42
|
|
-iii-
|
|
|
|
|
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|
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|
|
Page
|
|
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|
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|
|
SECTION 703.
|
|
Reports by Trustee
|
|
|
42
|
|
SECTION 704.
|
|
Reports by Company
|
|
|
43
|
|
|
|
ARTICLE EIGHT
|
|
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|
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|
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|
|
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
|
|
|
|
|
|
|
|
|
SECTION 801.
|
|
Company May Consolidate, Etc., Only on Certain Terms
|
|
|
43
|
|
SECTION 802.
|
|
Successor Substituted
|
|
|
44
|
|
|
|
|
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|
|
ARTICLE NINE
|
|
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|
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
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|
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|
|
|
SECTION 901.
|
|
Supplemental Indentures Without Consent of Holders
|
|
|
44
|
|
SECTION 902.
|
|
Supplemental Indentures With Consent of Holders
|
|
|
45
|
|
SECTION 903.
|
|
Execution of Supplemental Indentures
|
|
|
46
|
|
SECTION 904.
|
|
Effect of Supplemental Indentures
|
|
|
46
|
|
SECTION 905.
|
|
Conformity with Trust Indenture Act
|
|
|
47
|
|
SECTION 906.
|
|
Reference in Securities to Supplemental Indentures
|
|
|
47
|
|
|
|
|
|
|
|
|
|
|
ARTICLE TEN
|
|
|
|
|
|
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|
|
|
|
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|
|
COVENANTS
|
|
|
|
|
|
|
|
|
|
|
|
SECTION 1001.
|
|
Payment of Principal, Premium and Interest
|
|
|
47
|
|
SECTION 1002.
|
|
Maintenance of Office or Agency
|
|
|
47
|
|
SECTION 1003.
|
|
Money for Securities Payments to Be Held in Trust
|
|
|
47
|
|
SECTION 1004.
|
|
Statement by Officers as to Default
|
|
|
48
|
|
SECTION 1005.
|
|
Waiver of Certain Covenants
|
|
|
49
|
|
SECTION 1006.
|
|
Existence
|
|
|
49
|
|
SECTION 1007.
|
|
Limitation on Liens on Voting Stock of Significant Subsidiaries
|
|
|
49
|
|
|
|
|
|
|
|
|
|
|
ARTICLE ELEVEN
|
|
|
|
|
|
|
|
|
|
|
|
|
|
REDEMPTION OF SECURITIES
|
|
|
|
|
|
|
|
|
|
|
|
SECTION 1101.
|
|
Applicability of Article
|
|
|
49
|
|
SECTION 1102.
|
|
Election to Redeem; Notice to Trustee
|
|
|
49
|
|
SECTION 1103.
|
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Selection by Trustee of Securities to Be Redeemed
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50
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SECTION 1104.
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Notice of Redemption
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50
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SECTION 1105.
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Deposit of Redemption Price
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51
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SECTION 1106.
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Securities Payable on Redemption Date
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51
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SECTION 1107.
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Securities Redeemed in Part
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51
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ARTICLE TWELVE
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SINKING FUNDS
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SECTION 1201.
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Applicability of Article
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52
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SECTION 1202.
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Satisfaction of Sinking Fund Payments with Securities
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52
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SECTION 1203.
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Redemption of Securities for Sinking Fund
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52
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-iv-
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Page
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ARTICLE THIRTEEN
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DEFEASANCE AND COVENANT DEFEASANCE
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SECTION 1301.
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Companys Option to Effect Defeasance or Covenant Defeasance
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53
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SECTION 1302.
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Defeasance and Discharge
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53
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SECTION 1303.
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Covenant Defeasance
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53
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SECTION 1304.
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Conditions to Defeasance or Covenant Defeasance
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54
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SECTION 1305.
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Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions
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55
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SECTION 1306.
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Reinstatement
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56
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.
-v-
INDENTURE, dated as of
, between First Horizon National Corporation, a corporation duly
organized and existing under the laws of the State of Tennessee (herein called the Company),
having its principal office at 165 Madison Avenue, Memphis, Tennessee 38103, and The Bank of New
York Mellon Trust Company, N.A., a national banking association duly organized and existing under
the laws of the United States of America, as Trustee (herein called the Trustee).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the Securities), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101.
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles, and, except as otherwise herein expressly
provided, the term generally accepted accounting principles with respect to any computation
required or permitted hereunder shall mean such accounting principles as are generally accepted in
the United States of America at the date of such computation;
(4) unless the context otherwise requires, any reference to an Article or a Section refers
to an Article or a Section, as the case may be, of this Indenture;
(5) 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; and
(6) reference to any gender includes the other gender.
Act, when used with respect to any Holder, has the meaning specified in Section 104.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, control when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms controlling and
controlled have meanings correlative to the foregoing.
Applicable Procedures of a Depositary means, with respect to any matter at any time, the
policies and procedures of such Depositary, if any, that are applicable to such matter at such
time.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.
Board of Directors means either the board of directors of the Company, or any duly
authorized committee of that board, or any committee of one or more officers of the Company
authorized by the Board of Directors to issue Securities.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.
Business Day, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in New York, New York or that Place of Payment are authorized or obligated by law or
executive order to close.
Commission means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
Company means the Person named as the Company in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of
the Company by its Chief Executive Officer, its Chief Financial Officer, the Chairman of the Board
(if at that time the person holding that title is an officer of the Company), its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
Corporate Trust Office means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof is located at 2
North LaSalle Street, Suite 1020, Chicago, IL 60602, Attention: Corporate Trust Administration, or
such other address as the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or such other address as
such successor Trustee may designate from time to time by notice to the Holders and the Company).
-2-
corporation means a corporation, association, company, including, without limitation, a
limited liability company, joint-stock company or business trust.
Covenant Defeasance has the meaning specified in Section 1303.
Defaulted Interest has the meaning specified in Section 307.
Defeasance has the meaning specified in Section 1302.
Depositary means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 301.
Event of Default has the meaning specified in Section 501.
Exchange Act means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.
Expiration Date has the meaning specified in Section 104.
Foreign Government Obligations has the meaning specified in Section 1304.
Global Security means a Security that evidences all or part of the Securities of any series
and bears the legend set forth in Section 204 (or such legend as may be specified as contemplated
by Section 301 for such Securities).
Holder means a Person in whose name a Security is registered in the Security Register.
Indenture means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term Indenture
shall also include the terms of particular series of Securities established as contemplated by
Section 301.
Interest, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
Investment Company Act means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.
Maturity, when used with respect to any Security, means the date on which the principal of,
or an installment of principal of, such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
-3-
Notice of Default means a written notice of the kind specified in Section 501(4) or 501(5).
Officers Certificate means a certificate signed by the Chief Executive Officer, the Chief
Financial Officer, the Chairman of the Board (if at that time the person holding that title is an
officer of the Company), the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee.
One of the officers signing an Officers Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
Opinion of Counsel means a written opinion, reasonably acceptable to the Trustee, of
counsel, who may be counsel for the Company.
Original Issue Discount Security means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
Outstanding, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided
,
however
, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon acceleration of the Maturity
thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable
at the Stated Maturity of a Security is not determinable, the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated in one or more
foreign currencies, currency units or composite currencies which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent,
-4-
determined as of such date in the manner provided as contemplated by Section 301, of the principal
amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the
amount determined as provided in such Clause), and (D) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other obligor, other than
securities held in trust or in a fiduciary capacity, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor.
Paying Agent means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.
Person means any individual, corporation, partnership, limited liability company, joint
venture, trust, unincorporated organization or government or any agency or political subdivision
thereof.
Place of Payment, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
Redemption Price, when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
Regular Record Date for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 301.
Responsible Officer, when used with respect to the Trustee, means any vice president, any
trust officer or assistant trust officer, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated officers and who
shall have direct responsibility for the administration of this indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
Securities Act means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.
-5-
Security Register and Security Registrar have the respective meanings specified in Section
305.
Significant Subsidiary means a Subsidiary of the Company having, as of the last day of the
most recent calendar quarter ended at least 30 days prior to the date of such determination (or if
the most recent calendar quarter ended 30 days or less prior to the date of such determination, as
of the preceding recent calendar quarter), total assets equal to or exceeding 20% of the total
assets of the Company and its Subsidiaries on a consolidated basis, as evidenced by the most recent
consolidated financial statements of the Company delivered to the Trustee pursuant to the
Indenture.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307.
Stated Maturity, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary of any Person means (a) any corporation, association or other business entity
(other than a partnership, joint venture, limited liability company or similar entity) of which
more than 50% of the outstanding Voting Stock or (b) any partnership, joint venture limited
liability company or similar entity of which more than 50% of the capital accounts, distribution
rights, total equity and voting interests or general or limited partnership interests, as
applicable, is, in the case of clauses (a) and (b), at the time owned or controlled, directly or
indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries of such Person or (3)
one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a
Subsidiary will refer to a Subsidiary of the Company.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, Trust Indenture Act means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, Trustee as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
U.S. Government Obligation has the meaning specified in Section 1304.
Vice President, when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
vice president.
Voting Stock means stock or other interests evidencing ownership in a corporation,
partnership or trust which ordinarily has voting power for the election of directors, or persons
performing equivalent functions, whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
-6-
SECTION 102.
Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers Certificate, if to be given by an officer of the Company, or
an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (except for certificates provided for in Section 1004) shall include,
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
SECTION 103.
Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
-7-
SECTION 104.
Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred
to as the Act of the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof or may be proved in
such other manner as shall be deemed sufficient by the Trustee. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The principal amount, serial numbers and ownership of Securities shall be proved by the
Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
Without limiting the generality of the foregoing, a Holder, including a Depositary that is a
Holder of a Global Security, may make, give or take, by proxy or proxies, duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted in this Indenture to be made, given or taken by Holders, and a Depositary
that is a Holder of a Global Security may provide its proxy or proxies to the beneficial owners of
interests in any such Global Security.
The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set shall automatically and
with no action by any
-8-
Person be cancelled and of no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on or prior to the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable Expiration Date to be given
to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set
forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to
institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section
512, in each case with respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person be cancelled and of
no effect), and nothing in this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities of the relevant series on or
prior to the date such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Trustee, at the Companys expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the Company in writing
and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party hereto which sets such
record date may designate any day as the Expiration Date and from time to time may change the
Expiration Date to any earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in writing, and to
each Holder of Securities of the relevant series in the manner set forth in Section 106, on or
prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day
after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
SECTION 105.
Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Administration, or
-9-
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously furnished in writing to
the Trustee by the Company. The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or communications.
The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured
electronic methods, provided, however, that the Trustee shall have received an incumbency
certificate listing persons designated to give such instructions or directions and containing
specimen signatures of such designated persons, which such incumbency certificate shall be amended
and replaced whenever a person is to be added or deleted from the
listing. If the Company elects to
give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method)
and the Trustee in its discretion elects to act upon such instructions, the Trustees reasonable
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for
any losses, costs or expenses arising directly or indirectly from the Trustees reliance upon and
compliance with such instructions. The Company agrees to assume all risks arising out of the use
of such electronic methods to submit instructions and directions to the Trustee, including without
limitation the risk of the Trustee acting on unauthorized instructions, and the risk or
interception and misuse by third parties.
SECTION 106.
Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register
or provided through the Applicable Procedures of the Depository, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 107.
Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may be.
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SECTION 108.
Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 109.
Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 110.
Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 111.
Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112.
Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York.
SECTION 113.
Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section)) payment of interest
or principal (and premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity;
provided
that no interest shall accrue as a result of such delay.
SECTION 114.
Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
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SECTION 115.
Immunity of Incorporators, Limited Partners, Shareholders, Trustees, Directors
and Officers.
No recourse shall be had for the payment of the principal of (and premium, if any), or the
interest, if any, on any Securities of any series, or for any claim based thereon, or upon any
obligation, covenant or agreement of this Indenture, against any incorporator, limited partner,
shareholder, trustee, director, officer or employee, as such, past, present or future, of the
Company or of any successor entity to the Company, either directly or indirectly through the
Company or any successor entity to the Company, whether by virtue of any constitution, statute,
rule of law or by the enforcement of any assessment of penalty or otherwise; it being expressly
agreed and understood that this Indenture, and all the Securities of each series are solely
obligations of the Company (as the case may be), and that no personal liability whatever shall
attach to, or is incurred by, any incorporator, limited partner, shareholder, trustee, director,
officer or employee, past, present or future, of the Company or of any successor entity to the
Company, either directly or indirectly through the Company or any successor corporation to the
Company, because of the incurring of the indebtedness hereby authorized or under or by reason of
any of the obligations, covenants or agreements contained in this Indenture or in any of the
Securities of any series, or to be implied herefrom or therefrom; and that all such personal
liability is hereby expressly released and waived as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the Securities of each
series.
ARTICLE TWO
SECURITY FORMS
SECTION 201.
Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article, or
in such other form as shall be established from time to time by or pursuant to a Board Resolution
or in one or more indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture or any
indentures supplemental hereto, and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements placed thereon as the Company may deem appropriate
or as may be required to comply with the rules of any securities exchange or Depositary therefor or
as may, consistently herewith, be determined by the officers executing such Securities, as
evidenced by their execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 202.
Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations thereunder.] THIS NOTE
IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
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FIRST HORIZON NATIONAL CORPORATION
First Horizon National Corporation, a corporation duly organized and existing under the laws of
Tennessee (herein called the Company, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to
, or registered
assigns, the principal sum of
Dollars on
[if the Security is to bear interest prior to
Maturity, insert , and to pay interest thereon from
or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
and
in each year,
commencing
, at the rate of
% per annum, until the principal hereof is paid or made available for
payment [if applicable, insert , provided that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of
% per annum (to the
extent that the payment of such interest shall be legally enforceable), from the dates such amounts
are due until they are paid or made available for payment, and such interest shall be payable on
demand]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the
or
(whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest so payable, but not so punctually
paid or duly provided for, on any Interest Payment Date will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert The principal of this
Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of
% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due until they are
paid or made available for payment. Interest on any overdue principal or premium shall be payable
on demand. [Any such interest on overdue principal or premium which is not paid on demand shall
bear interest at the rate of
% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on any overdue interest shall be payable on
demand.]]
Payment of the principal of (and premium, if any) and [if applicable, insert any such]
interest on this Security will be made at the office or agency of the Company maintained for that
purpose in
, in such coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, against surrender of this Security in the
case of any payment due at the Stated Maturity of the principal hereof; [if applicable, insert ;
provided
,
however
, that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register; and
provided
,
further
, that if this Security is a Global Security, payment may be made
pursuant to the Applicable Procedures of the Depositary as permitted in the Indenture.]
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Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
FIRST HORIZON NATIONAL CORPORATION
BY
Attest:
SECTION 203.
Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
(herein called the Indenture, which term shall have the meaning assigned to it in such
instrument), between the Company and
, as Trustee (herein called the Trustee, which term
includes any successor trustee under the Indenture), and reference is hereby made to the Indenture
for a statement of the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert, limited in aggregate principal amount to
$_________] [,
provided
that the Company may, without the consent of any Holder, at any time and
from time to time increase the initial principal amount as provided in the Indenture].
[If applicable, insert The Securities of this series are subject to redemption upon not
less than 30 days notice by mail, [if applicable, insert - (1) on
in any year commencing
with the year _____ and ending with the year _____ through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable,
insert on or after
, 20_____], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if
applicable, insert on or before
, _____%, and if redeemed] during the 12-month period beginning
of the years indicated,
and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of
any such redemption [if applicable, insert (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more
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Predecessor Securities, of record at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.]
[If applicable, insert The Securities of this series are subject to redemption upon not
less than 30 days notice by mail, (1) on
in any year commencing with the year _____ and ending with
the year through operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [if applicable, insert on or after
, 20_____], as
a whole or in part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period beginning
of the
years indicated,
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Redemption Price
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Redemption Price
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For Redemption
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For Redemption
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Otherwise Than
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Through Operation
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Through Operation
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of the
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of the
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Year
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Sinking Fund
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Sinking Fund
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and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of
any such redemption (whether through operation of the sinking fund or otherwise) with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable, insert Notwithstanding the foregoing, the Company may not, prior to
,
redeem any Securities of this series as contemplated by [if applicable, insert Clause (2) of]
the preceding paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less than
% per annum.]
[If applicable, insert The sinking fund for this series provides for the redemption on
in
each year beginning with the year _____ and ending with the year _____ of [if applicable, insert not
less than $
(mandatory sinking fund) and not more than] $
aggregate principal amount of
Securities of this series. Securities of this series acquired or redeemed by the Company otherwise
than through [if applicable, insert mandatory] sinking fund payments may be credited against
subsequent
[if applicable, insert mandatory] sinking fund payments otherwise required to be made [if
applicable, insert , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert In the event of redemption of
this Security in part only, a new Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
[If applicable, insert The Indenture contains provisions for defeasance at any time of [the
entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default
with respect to this Security] [, in each case] upon compliance with certain conditions set forth
in the Indenture.]
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[If the Security is not an Original Issue Discount Security, insert If an Event of Default
with respect to Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to insert formula for determining the
amount.]
[Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest
on any overdue principal, premium and interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Companys obligations in respect of the payment
of the principal of and premium and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
indemnity reasonably satisfactory to the Trustee, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted
by the Holder of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his
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attorney duly authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $
and any integral multiple of $
in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
[
If applicable, insert
Interest on the principal balance of this Security shall be
calculated on the basis of a [365 or 366 day year, as appropriate, for the actual number of days
elapsed] [360 day year of twelve 30 day months.]]
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
SECTION 204.
Form of Legend for Global Securities in Global Form.
If any Security of a series is issuable in global form, such Global Security may provide that
it shall represent the aggregate amount of Outstanding Securities from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee and in such manner as shall be
specified in such Global Security.
Global Securities may be issued in either temporary or permanent form. Permanent Global
Securities will be issued in registered form without coupons.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
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OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
[
If a Global Security is to be held by The Depository Trust Company, then insert
: UNLESS THIS
NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (DTC) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE& CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO. HAS AN INTEREST HEREIN.]
SECTION 205.
Form of Trustees Certificate of Authentication.
The Trustees certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A, as Trustee
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Date:
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By:
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Authorized Officer
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ARTICLE THREE
THE SECURITIES
SECTION 301.
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided,
in an Officers Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish the Securities of the
series from Securities of any other series);
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(2) any limit upon the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable), or the method of determination
thereof, at which any Securities of the series shall bear interest, if any, the date or dates from
which any such interest shall accrue, or the method of determination thereof, the Interest Payment
Dates on which any such interest shall be payable and the Regular Record Date for any such interest
payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and interest on any Securities
of the series shall be payable;
(7) the period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series may be redeemed, in whole or in part, at the
option of the Company and, if other than by a Board Resolution, the manner in which any election by
the Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any Securities of the series
pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the
period or periods within which, the price or prices at which and the terms and conditions upon
which any Securities of the series shall be redeemed or purchased, 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 any Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or interest on any Securities of the series
may be determined with reference to a financial or economic measure, or to an index or pursuant to
a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the currency, currencies,
currency units or composite currency in which the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of determining the equivalent thereof in
the currency of the United States of America for any purpose, including for purposes of the
definition of Outstanding in Section 101;
(12) if the principal of or any premium or interest on any Securities of the series is to be
payable, at the election of the Company or the Holder thereof, in one or more currencies, currency
units or composite currencies other than that or those in which such Securities are stated to be
payable, the currency, currencies, currency units or composite currencies in which the principal of
or any premium or interest on such Securities as to which such election is made shall be payable,
the periods within which
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and the terms and conditions upon which such election is to be made and the amount so payable
(or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of the principal amount of
any Securities of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any Securities of the series
will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which
shall be deemed to be the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall be due and payable upon
any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any
date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any specified part, shall
be defeasible pursuant to Section 1302 or Section 1303 or both such Sections and, if other than by
a Board Resolution, the manner in which any election by the Company to defease such Securities
shall be evidenced;
(16) if applicable, that any Securities of the series shall be issuable in whole or in part in
the form of one or more Global Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 204 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 305 in
which any such Global Security may be exchanged in whole or in part for Securities registered, and
any transfer of such Global Security in whole or in part may be registered, in the name or names of
Persons other than the Depositary for such Global Security or a nominee thereof;
(17) any addition to or change in the Events of Default which applies to any Securities of the
series and any change in the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in Article Ten which applies to
Securities of the series;
(19) if other than as specified in Section 501, the Events of Default applicable to the
Securities of such series;
(20) if other than as specified in Section 503, the Event of Defaults applicable with respect
to the Securities of the series; and
(21) any other terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided, in the Officers
Certificate referred to above or in any such indenture supplemental hereto. All Securities of any
one series need not be issued at one time and, unless otherwise provided or contemplated by this
Section 301 with respect to a
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series of Securities, additional Securities of a series may be issued at the option of the
Company, without the consent of any Holder, at any time and from time to time.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers Certificate setting forth the terms of the series.
SECTION 302.
Denominations.
The Securities of each series shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by Section 301. In the absence of
any such specified denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral multiple in excess
thereof.
SECTION 303.
Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board of
Directors, its Vice Chairman of the Board of Directors, its President or one of its Vice
Presidents, attested by its Secretary, one of its Assistant Secretaries or other authorized Person
of the Company. The signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of issuance of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If any Security shall be represented by a permanent Global Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owners interest therein
upon original issuance of such Security or upon exchange of a portion of a temporary Global
Security shall be deemed to be delivered in connection with the original issuance of such
beneficial owners interest in such permanent Global Security. If the form or terms of the
Securities of the series have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall receive,
and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(1) if the form of such Securities has been established by or pursuant to Board Resolution as
permitted by Section 201, that such form has been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities have been established by or pursuant to Board Resolution
as permitted by Section 301, that such terms have been established in conformity with the
provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of Counsel, will
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constitute valid and legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors rights and to general
equity principles.
If such form or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, including where the size of an
Outstanding series of Securities is increased as contemplated in Section 301, it shall not be
necessary to deliver the Officers Certificate otherwise
required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for
all purposes of this Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304.
Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive Securities of such
series and tenor.
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SECTION 305.
Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the Security Register) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby appointed
Security Registrar for the purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or
agency of the Company in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, the Company shall not be required (A) to issue, register the transfer of or exchange any
Securities of that series (or of that series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part, or (C) issue, register the transfer of or exchange any Security
that has been surrendered for repayment at the option of the Holder, except the portion, if any, of
the Security that is not to be repaid.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of
the Depositary designated for such Global Security or a nominee thereof and delivered to such
Depositary
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or a nominee thereof or custodian therefor, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged
in whole or in part for Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security and no successor Depositary
has been appointed within 90 days or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to
such Global Security, (C) the Company, in its sole discretion, has determined that Securities of
any series issued in the form of one or more Global Securities shall no longer be represented by
such Global Security or Global Securities or (D) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be
made in whole or in part, and all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this
Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof.
SECTION 306.
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled
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to all the benefits of this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
SECTION 307.
Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series and the date of
the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the manner set forth in Section
106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series 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.
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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SECTION 308.
Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 307) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 309.
Cancellation.
All Securities surrendered for payment, redemption, conversion, registration of transfer or
exchange or for credit against any sinking fund payment or analogous obligation shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company has not issued and
sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION 310.
Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 311.
CUSIP Numbers.
The Company in issuing the Securities may use CUSIP numbers and, if so, the Trustee shall
use CUSIP numbers in notices of redemption as a
convenience to Holders;
provided
,
however
, that any
such notice may state that no representation is made as to the correctness of such numbers either
as printed on the Securities or as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company will promptly
notify the Trustee in writing of any change in the CUSIP numbers. Any such redemption shall not
be affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401.
Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect with respect to
Securities of any series specified in such Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for in the terms of
such Security), and the Trustee, upon receipt of Company Request and at the expense of the Company,
shall
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execute proper instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i) Securities
of such series which have been mutilated, destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Securities of such series for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company, and the Company, in the case of (i),
(ii) or (iii) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation (other than Securities which have been mutilated,
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306), for principal and any premium and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company
in respect of such Securities; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to such Securities have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, with respect to Securities
of any series pursuant to this Section 401, the obligations of the Company to the Trustee under
Section 607, the obligations of the Trustee to any Authenticating Agent under Section 614 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003,
in each case with respect to such Securities, shall survive such satisfaction and discharge.
SECTION 402.
Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons
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entitled thereto, of the principal and any premium and interest for whose payment such money
has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501.
Events of Default.
Event of Default, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any Security, if any, of that
series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 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
not less than 25% in principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating that such notice is a
Notice of Default hereunder; or
(5) a default under any bond, debenture, note or other evidence of indebtedness for money
borrowed by the Company or one of our Significant Subsidiaries (including a default with respect to
Securities of any series other than that series) having an aggregate principal amount outstanding
of in excess of $100,000,000, or under any mortgage, indenture or instrument (including this
Indenture) under which there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or one of our Significant Subsidiaries having an
aggregate principal amount outstanding of in excess of $100,000,000, whether such indebtedness now
exists or shall hereafter be created, which default (A) shall constitute a failure to pay any
portion of the principal of such indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto or (B) shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date on which it would otherwise have
become due and payable, without, in the case of Clause (A), such indebtedness having been
discharged or without, in the case of Clause (B), such indebtedness having been discharged or such
acceleration having been rescinded or annulled, in each such case within a period of 30 days after
there shall have been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default and requiring the Company to
cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled, as
the case may be, and stating that such notice is a Notice of Default hereunder; provided,
however, that,
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subject to the provisions of Sections 601 and 602, the Trustee shall not be deemed to have
knowledge of such default unless either (A) a Responsible Officer of the Trustee shall have actual
knowledge of such default or (B) the Trustee shall have received written notice thereof from the
Company, from any Holder, from the holder of any such indebtedness or from the trustee under any
such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in effect for a period of
60 consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities of that series.
SECTION 502.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 501(6) or 501(7))
with respect to Securities of any series at the time Outstanding occurs and is continuing, then in
every such case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all the Securities of
that series (or, if any Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by the terms thereof) to be
due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(6) or 501 (7) with
respect to Securities of any series at the time Outstanding occurs, the principal amount of all the
Securities of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be specified by the
terms thereof) shall automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the
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Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have
become due otherwise than by such declaration of acceleration and any interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503.
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days;
(2) default is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof; or
(3) default is made in the making or satisfaction of any sinking fund payment or analogous
obligation when the same becomes due pursuant to the terms of such Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal, and any premium
interest, and sinking fund obligation and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal, premium or sinking fund obligation and on
any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem necessary to protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in
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this Indenture or in aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504.
Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors or other similar
committee.
SECTION 505.
Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto. Any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust. Any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 506.
Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and
interest on the Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and any premium and interest, respectively; and
THIRD: To the Company.
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SECTION 507.
Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that
series shall have made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such
Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 508.
Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be impaired without the
consent of such Holder.
SECTION 509.
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510.
Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or
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reserved to the Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511.
Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512.
Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 513.
Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default:
(1) in the payment of the principal of or any premium or interest on any Security of such
series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 514.
Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that
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neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted by the Company or
the Trustee.
SECTION 515.
Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601.
Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such certificates or
opinions which by any 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) In case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by
a Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
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(3) 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 Holders of a
majority in principal amount of the Outstanding Securities of any series relating to
the time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 602.
Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give
the Holders of Securities of such series notice of such default as and to the extent provided by
the Trust Indenture Act; provided, however, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such notice to Holders
shall be given until the expiration of the 30 day period as provided therein. For the purpose of
this Section, the term default means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603.
Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officers Certificate;
(4) the Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
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(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney, at the sole cost of the Company, and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;
(9) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder;
(10) the Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture; and
(11) the
Trustee shall not be deemed to have notice of any Default or Event of
Default unless the Trustee has knowledge thereof.
SECTION 604.
Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605.
May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
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SECTION 606.
Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 607.
Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such reasonable compensation as the Company and
the Trustee shall from time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as shall be determined to have been caused by its negligence or willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability, claim,
damage or expense incurred without negligence or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an Event of Default,
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 608.
Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a trustee under this Indenture with respect to Securities of more than one
series.
SECTION 609.
Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such, and has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust
Office or agency in the Borough of
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Manhattan, The City of New York. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining authority, then
for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any time the Trustee with
respect to the Securities of any series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610.
Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company.
The Trustee may be removed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
If the instrument of acceptance by a successor Trustee required by Section 611 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of resignation or
removal, the resigning or removed Trustee may petition, in the case of removal, at the expense of
the Company, any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security for at least six months;
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after
written request therefor by the Company or by any such Holder; 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, (A) the Company by a Board Resolution may remove the Trustee with respect
to all Securities or the Securities of any series, or (B) subject to Section 514, any Holder who
has been a bona fide Holder of a Security of any 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 with respect to all Securities of such series and the appointment of a
successor Trustee or Trustees with respect thereto.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the
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Securities of that or those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611.
Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges (including reasonable attorneys fees and expenses)
hereunder, execute and deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the
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execution and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
SECTION 612.
Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.
SECTION 613.
Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor).
SECTION 614.
Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustees certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the
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requirements of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 106 to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustees certificate of
authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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As Authenticating Agent
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701.
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after each Regular Record Date relating to
Securities of each series then outstanding (or, if there is no Regular Record Date, January 15 and
July 15) in each year, a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of each series as of the preceding
or
, as the case may
be, and
(2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.
SECTION 702.
Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 703.
Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than 12 months shall be
transmitted no later than January 31 in each calendar year, commencing in 2011.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will notify the Trustee when any Securities are listed or delisted on any
stock exchange.
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SECTION 704.
Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, only as and to the extent
required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to
such Act. For the purposes of this Section 704, the Company makes no representation, warranty, covenant or agreement to the Holders of
any series of Securities as to the accuracy or completeness of any such document or report or as to
the timeliness of any such filing with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801.
Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation, partnership or other entity, shall be organized and validly
existing under the laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of
and any premium and interest on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary as a result of such transaction as having
been incurred by the Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such conveyance, transfer or lease,
properties or assets of the Company would become subject to a mortgage, pledge, lien, security
interest or other encumbrance which would not be permitted by this Indenture, the Company or such
successor Person, as the case may be, shall take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
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(4) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802.
Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901.
Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of the Holders of all or any series
of Securities (and if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Company;
(3) to add any additional Events of Default for the benefit of the Holders of all or any
series of Securities (and if such additional Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional Events of Default are expressly being
included solely for the benefit of such series);
(4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form;
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities, provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of
any such Security with respect to such provision or (B) shall become effective only when there is
no such Security Outstanding;
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(6) to add any guarantees of all or any series of Securities;
(7) to secure all or any series of the Securities (and if such additional security is to be
for the benefit of less than all series of Securities, stating that such additional security is
expressly being included solely for the benefit of such series);
(8) to establish the form or terms of Securities of any series as permitted by Sections 201
and 301;
(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more series and to 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 611;
(10) to add to, change or eliminate any of the provisions of this Indenture to such extent as
shall be necessary to comply with the rules or regulations on any securities exchange or automated
quotation system on which any of the Securities may be listed or traded;
(11) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, to eliminate any conflict between the
terms hereof and the Trust Indenture Act or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant to this clause (10)
shall not adversely affect the interests of the Holders of Securities of any series in any material
respect; or
(12) to supplement any of the provisions of the Indenture to such extent as shall be necessary
to permit or facilitate the satisfaction and discharge or defeasance or covenant defeasance of any
series of Securities pursuant to Articles Four and Thirteen, respectively;
provided
that any such
action shall not adversely affect the interests of the Holders of such series or any other series
of Securities in any material respect.
SECTION 902.
Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installments of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502, or adversely affect
any right of repayment at the option of the Holder of any Security, or reduce the amount of, or
postpone the date fixed for, the payment of any sinking fund payment or analogous obligation, or
change any Place of Payment where, or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the
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right to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption Date);
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 513 or Section 1005, except to
increase any such percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to the Trustee and concomitant changes in this
Section and Section 1005, or the deletion of this proviso, in accordance with the requirements of
Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental hereto. If a record date
is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date.
SECTION 903.
Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall receive, and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel and Officers Certificate stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustees own rights, duties or
immunities under this Indenture, but the Trustee shall, subject to the first sentence of this
Section 903, enter into all other supplemental indentures requested by the Company.
SECTION 904.
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
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SECTION 905.
Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION 906.
Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities
of such series.
ARTICLE TEN
COVENANTS
SECTION 1001.
Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and premium, if any, and interest on the Securities of
that series in accordance with the terms of the Securities and this Indenture.
SECTION 1002.
Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 1003.
Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be
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paid to such Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of or any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held
as provided by the Trust Indenture Act and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the Securities of that series)
in the making of any payment in respect of the Securities of that series, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004.
Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers Certificate, stating that a review of the
activities of the Company during such year and of performance under this Indenture has been made
under their supervision and whether or not to the best knowledge and based on such review of the
signers thereof the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of grace or requirement
of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
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SECTION 1005.
Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided pursuant to Section
301(18), 901(2) or 901(7) for the benefit of the Holders of such series if before the time for such
compliance the Holders of not less than a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
SECTION 1006.
Existence.
Subject to Article Eight, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence.
SECTION 1007.
Limitation on Liens on Voting Stock of Significant Subsidiaries
Solely for the benefits of each series of the Securities, so long as any series of the
Securities are Outstanding, the Company will not and will not permit any Significant Subsidiary to,
directly or indirectly, create, issue, assume, incur or guarantee any indebtedness for money
borrowed which is secured by a mortgage, pledge, lien,
security interest or other encumbrance of any nature on any of the present or future Voting Stock
of a Significant Subsidiary unless any series of the Securities and, if the Company so elects, any
other indebtedness of the Company ranking at least pari passu with each series of the Securities,
shall be secured equally and ratably with (or prior to) such other secured indebtedness for money
borrowed so long as it is outstanding.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101.
Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for such Securities) in accordance with this Article.
SECTION 1102.
Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Company of less than all the Securities of any series (including
any such redemption affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or
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elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers
Certificate evidencing compliance with such restriction.
SECTION 1103.
Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of
such series and of a specified tenor are to be redeemed or unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by pro rata, by lot or by such method as in accordance with the
regulations of the Depositary, if any, and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that the unredeemed
portion of the principal amount of any Security shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting a series of Securities comprised of only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion
of the principal amount of the Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104.
Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series consisting of more than a single
Security are to be redeemed, the identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be redeemed and, if less than
all the entire principal amount of any series consisting of a single Security are to be redeemed,
the portion of the principal amount of the particular Security to be redeemed;
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(4) that on the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date;
(5) the CUSIP numbers, if any, of the Securities to be redeemed;
(6) the place or places where each such Security is to be surrendered for payment of the
Redemption Price; and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request and upon provision to the Trustee of such notice
information, by the Trustee in the name and at the expense of the Company and, unless otherwise
specified, shall be irrevocable;
provided
, however, in the latter case the Trustee shall be
given at least 10 days prior notice of the requested date of the giving of the notice or such
shorter time as may be acceptable to the Trustee.
SECTION 1105.
Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106.
Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date; provided, however, that,
unless otherwise specified as contemplated by Section 301, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
SECTION 1107.
Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the
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same series and of like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201.
Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of any series except as otherwise specified as contemplated by Section 301 for such
Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities 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 such Securities is herein referred to as an optional sinking
fund payment. If provided for by the terms of Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of a series as provided for by the terms
of such Securities.
SECTION 1202.
Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or which
have otherwise been acquired by the Company or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all
or any part of any sinking fund payment with respect to any Securities of such series required to
be made pursuant to the terms of such Securities as and to the extent provided for by the terms of
such Securities; provided that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for such purpose by the
Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203.
Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for Securities of any series,
the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the
portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and
will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to
each such sinking fund payment date, the Trustee shall select the Securities of such series to be
redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in
the manner provided in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
-52-
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301.
Companys Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or Section 1303 applied
to any Securities or any series of Securities, as the case may be, designated pursuant to Section
301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable
requirements provided pursuant to Section 301 and upon compliance with the conditions set forth
below in this Article. Any such election shall be evidenced by a Board Resolution or in another
manner specified as contemplated by Section 301 for such Securities.
SECTION 1302.
Defeasance and Discharge.
Upon the Companys exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called
Defeasance). For this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Securities and to have satisfied
all its other obligations under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the
trust fund described in Section 1304 and as more fully set forth in such Section, payments in
respect of the principal of and any premium and interest on such Securities when payments are due,
(2) the Companys obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4)
this Article. Subject to compliance with this Article, the Company may exercise its option (if any)
to have this Section applied to any Securities notwithstanding the prior exercise of its option (if
any) to have Section 1303 applied to such Securities.
SECTION 1303.
Covenant Defeasance.
Upon the Companys exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (1) the Company shall be released from
its obligations under Section 801(3) and any covenants provided pursuant to Section 301(18), 901(2)
or 901(7) for the benefit of the Holders of such Securities and (2) the occurrence of any event
specified in Sections 501(4) (with respect to any of Section 801(3) and any such covenants provided
pursuant to Section 301(18), 901(2) or 901(7)), 501(5) and 501(8) shall be deemed not to be or
result in an Event of Default, in each case with respect to such Securities as provided in this
Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter
called Covenant Defeasance). For this purpose, such Covenant Defeasance means that, with respect
to such Securities, the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to the extent so
specified in the case of Section 501(4)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
-53-
SECTION 1304.
Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or Section 1303 to
any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee which satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Indenture applicable to it as if it were the Trustee hereunder)
as trust funds in trust for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) in the
case of Securities of a series denominated in a foreign currency, money in such foreign currency or
Foreign Government Obligations of the foreign government or governments issuing such foreign
currency which through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due date of any
payment, such foreign currency in an amount or (B) in the case of Securities denominated in U.S.
dollars, U.S. dollars or U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, U.S. dollars in an amount, or (C) a combination of
money and U.S. Government Obligations or Foreign Government Obligations (as applicable), in each
case sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such Securities. As used herein,
U.S. Government Obligation means (x) any security which is (i) a direct obligation of the United
States of America for the payment of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and
held by such bank for the account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt. As used herein, Foreign Government
Obligation means any security denominated in a foreign currency which is (i) a direct obligation
of a foreign government or governments for the payment of which the full faith and credit of such
foreign government or governments is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of such foreign government or governments
the payment of which is unconditionally guaranteed as a full faith and credit obligation by such
foreign government, which, in either case (i) or (ii) is not callable or redeemable at the option
of the issuer thereof.
(2) In the event of an election to have Section 1302 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date of this instrument, there has been a change
in the applicable Federal income tax law, in either case (x) or (y) to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be
-54-
subject to Federal income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and Covenant Defeasance were
not to occur.
(4) The Company shall have delivered to the Trustee an Officers Certificate to the effect
that neither such Securities nor any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such event specified in Sections
501(6) and (7), at any time on or prior to the 90th day after the date of such deposit or, if
longer, ending on the day following the expiration of the longest preference period applicable to
the Company under Federal or State law in respect of such deposit (it being understood that this
condition shall not be deemed satisfied until after the expiration of such period).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Company is a party or by
which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act unless
such trust shall be registered under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
SECTION 1305.
Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money, U.S. Government
Obligations and Foreign Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and Section 1306, the
Trustee and any such other trustee are referred to collectively as the Trustee) pursuant to
Section 1304 in respect of any Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and
-55-
interest, but money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations or Foreign Government Obligations deposited
pursuant to Section 1304 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of Outstanding
Securities of the relevant series.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money or U.S. Government Obligations or
Foreign Government Obligations held by it as provided in Section 1304 with respect to any
Securities which, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
SECTION 1306.
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect
to such Securities in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in trust.
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
-56-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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FIRST HORIZON NATIONAL CORPORATION
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By
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Attest:
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THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Trustee
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By
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Exhibit 4.2
FIRST HORIZON NATIONAL CORPORATION
TO
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
INDENTURE
DATED
AS OF
JUNIOR SUBORDINATED DEBT SECURITIES
Certain Sections of this Indenture Relating to Sections 310 Through 318, Inclusive, of the
Trust Indenture Act of 1939:
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Trust Indenture Act Section
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Indenture Section
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Section 310
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(a)(1)
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609
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(a)(2)
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609
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(b)
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608
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610
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Section 311
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(a)
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613
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(b)
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613
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Section 312
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(a)
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701
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(b)
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702
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(c)
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702
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Section 313
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(a)
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703
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(b)
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703
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(c)
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703
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(d)
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703
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Section 314
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(a)
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704
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(a)(4)
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101
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1004
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(b)
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Not Applicable
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(c)(1)
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102
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(c)(2)
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102
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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102
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Section 315
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(a)
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601
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(b)
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602
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(c)
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601
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(d)
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601
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(e)
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514
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Section 316
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(a)
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101
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(a)(1)(A)
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502
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512
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(a)(1)(B)
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513
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(a)(2)
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Not Applicable
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(b)
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508
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(c)
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104
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Section 317
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(a)(1)
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503
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(a)(2)
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504
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(b)
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1003
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Section 318
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(a)
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107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
-i-
TABLE OF CONTENTS
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Page
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ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 101.
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Definitions
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1
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SECTION 102.
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Compliance Certificates and Opinions
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7
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SECTION 103.
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Form of Documents Delivered to Trustee
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8
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SECTION 104.
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Acts of Holders; Record Dates
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8
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SECTION 105.
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Notices, Etc., to Trustee and Company
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10
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SECTION 106.
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Notice to Holders; Waiver
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11
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SECTION 107.
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Conflict with Trust Indenture Act
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11
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SECTION 108.
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Effect of Headings and Table of Contents
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11
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SECTION 109.
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Successors and Assigns
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11
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SECTION 110.
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Separability Clause
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11
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SECTION 111.
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Benefits of Indenture
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11
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SECTION 112.
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Governing Law
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12
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SECTION 113.
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Legal Holidays
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12
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SECTION 114.
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Force Majeure
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12
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ARTICLE TWO
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SECURITY FORMS
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SECTION 201.
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Forms Generally
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12
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SECTION 202.
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Form of Face of Security
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13
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SECTION 203.
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Form of Reverse of Security
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14
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SECTION 204.
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Form of Legend for Global Securities in Global Form
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18
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SECTION 205.
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Form of Trustees Certificate of Authentication
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19
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ARTICLE THREE
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THE SECURITIES
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SECTION 301.
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Amount Unlimited; Issuable in Series
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19
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SECTION 302.
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Denominations
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22
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SECTION 303.
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Execution, Authentication, Delivery and Dating
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22
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SECTION 304.
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Temporary Securities
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23
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SECTION 305.
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Registration, Registration of Transfer and Exchange
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24
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SECTION 306.
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Mutilated, Destroyed, Lost and Stolen Securities
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25
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SECTION 307.
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Payment of Interest; Interest Rights Preserved
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26
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SECTION 308.
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Persons Deemed Owners
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27
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SECTION 309.
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Cancellation
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27
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SECTION 310.
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Computation of Interest
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27
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SECTION 311.
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CUSIP Numbers
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27
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Page
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ARTICLE FOUR
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SATISFACTION AND DISCHARGE
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SECTION 401.
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Satisfaction and Discharge of Indenture
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28
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SECTION 402.
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Application of Trust Money
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29
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ARTICLE FIVE
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REMEDIES
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SECTION 501.
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Events of Default
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29
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SECTION 502.
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Acceleration of Maturity; Rescission and Annulment
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30
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SECTION 503.
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Collection of Indebtedness and Suits for Enforcement by Trustee
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30
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SECTION 504.
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Trustee May File Proofs of Claim
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32
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SECTION 505.
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Trustee May Enforce Claims Without Possession of Securities
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32
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SECTION 506.
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Application of Money Collected
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32
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SECTION 507.
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Limitation on Suits
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33
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SECTION 508.
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Unconditional Right of Holders to Receive Principal, Premium and
Interest or to Convert
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33
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SECTION 509.
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Restoration of Rights and Remedies
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33
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SECTION 510.
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Rights and Remedies Cumulative
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34
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SECTION 511.
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Delay or Omission Not Waiver
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34
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SECTION 512.
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Control by Holders
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34
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SECTION 513.
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Waiver of Past Defaults
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34
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SECTION 514.
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Undertaking for Costs
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34
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SECTION 515.
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Waiver of Usury, Stay or Extension Laws
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35
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ARTICLE SIX
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THE TRUSTEE
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SECTION 601.
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Certain Duties and Responsibilities
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35
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SECTION 602.
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Notice of Defaults
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36
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SECTION 603.
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Certain Rights of Trustee
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36
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SECTION 604.
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Not Responsible for Recitals or Issuance of Securities
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37
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SECTION 605.
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May Hold Securities
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37
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SECTION 606.
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Money Held in Trust
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38
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SECTION 607.
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Compensation and Reimbursement
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38
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SECTION 608.
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Conflicting Interests
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38
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SECTION 609.
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Corporate Trustee Required; Eligibility
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38
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SECTION 610.
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Resignation and Removal; Appointment of Successor
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39
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SECTION 611.
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Acceptance of Appointment by Successor
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40
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SECTION 612.
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Merger, Conversion, Consolidation or Succession to Business
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41
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SECTION 613.
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Preferential Collection of Claims Against Company
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41
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SECTION 614.
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Appointment of Authenticating Agent
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41
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-iii-
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Page
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ARTICLE SEVEN
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HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 701.
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Company to Furnish Trustee Names and Addresses of Holders
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43
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SECTION 702.
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Preservation of Information; Communications to Holders
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43
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SECTION 703.
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Reports by Trustee
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43
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SECTION 704.
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Reports by Company
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43
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ARTICLE EIGHT
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CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
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SECTION 801.
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Company May Consolidate, Etc., Only on Certain Terms
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44
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SECTION 802.
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Successor Substituted
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44
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ARTICLE NINE
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SUPPLEMENTAL INDENTURES
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SECTION 901.
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Supplemental Indentures Without Consent of Holders
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45
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SECTION 902.
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Supplemental Indentures With Consent of Holders
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46
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SECTION 903.
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Execution of Supplemental Indentures
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47
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SECTION 904.
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Effect of Supplemental Indentures
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47
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SECTION 905.
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Conformity with Trust Indenture Act
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48
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SECTION 906.
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Reference in Securities to Supplemental Indentures
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48
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SECTION 907.
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Subordination Unimpaired
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48
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ARTICLE TEN
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COVENANTS
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SECTION 1001.
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Payment of Principal, Premium and Interest
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48
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SECTION 1002.
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Maintenance of Office or Agency
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48
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SECTION 1003.
|
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Money for Securities Payments to Be Held in Trust
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49
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SECTION 1004.
|
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Statement by Officers as to Default
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49
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SECTION 1005.
|
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Waiver of Certain Covenants
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50
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ARTICLE ELEVEN
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REDEMPTION OF SECURITIES
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SECTION 1101.
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Applicability of Article
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50
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SECTION 1102.
|
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Election to Redeem; Notice to Trustee
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50
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SECTION 1103.
|
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Selection by Trustee of Securities to Be Redeemed
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50
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SECTION 1104.
|
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Notice of Redemption
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51
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SECTION 1105.
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Deposit of Redemption Price
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52
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SECTION 1106.
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Securities Payable on Redemption Date
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52
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SECTION 1107.
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Securities Redeemed in Part
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53
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-iv-
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Page
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ARTICLE TWELVE
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SINKING FUNDS
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SECTION 1201.
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Applicability of Article
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53
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SECTION 1202.
|
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Satisfaction of Sinking Fund Payments with Securities
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53
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SECTION 1203.
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Redemption of Securities for Sinking Fund
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53
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ARTICLE THIRTEEN
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DEFEASANCE AND COVENANT DEFEASANCE
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SECTION 1301.
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Companys Option to Effect Defeasance or Covenant Defeasance
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54
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SECTION 1302.
|
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Defeasance and Discharge
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|
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54
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SECTION 1303.
|
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Covenant Defeasance
|
|
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54
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SECTION 1304.
|
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Conditions to Defeasance or Covenant Defeasance
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55
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SECTION 1305.
|
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Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions
|
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56
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SECTION 1306.
|
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Reinstatement
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57
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ARTICLE FOURTEEN
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SUBORDINATION OF SECURITIES
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SECTION 1401.
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Securities Subordinate to Senior Indebtedness
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57
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SECTION 1402.
|
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Payment Over of Proceeds Upon Dissolution, Etc.
|
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58
|
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SECTION 1403.
|
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Prior Payment to Senior Indebtedness Upon Acceleration of Securities
|
|
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58
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SECTION 1404.
|
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No Payment When Senior Indebtedness in Default
|
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59
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SECTION 1405.
|
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Payment Permitted in Certain Situations
|
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59
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SECTION 1406.
|
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Subrogation to Rights of Holders of Senior Indebtedness
|
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60
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SECTION 1407.
|
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Provisions Solely to Define Relative Rights
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|
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60
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SECTION 1408.
|
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Trustee to Effectuate Subordination
|
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60
|
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SECTION 1409.
|
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No Waiver of Subordination Provisions
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61
|
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SECTION 1410.
|
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Notice to Trustee
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61
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SECTION 1411.
|
|
Reliance on Judicial Order or Certificate of Liquidating Agent
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|
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62
|
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SECTION 1412.
|
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Trustee Not Fiduciary for Holders of Senior Indebtedness or Entitled Persons
|
|
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62
|
|
SECTION 1413.
|
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Rights of Trustee as Holder of Senior Indebtedness or Entitled Person; Preservation
of Trustees Rights
|
|
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62
|
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SECTION 1414.
|
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Article Applicable to Paying Agents
|
|
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63
|
|
SECTION 1415.
|
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Securities to Rank Pari Passu with all other Securities
|
|
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63
|
|
SECTION 1416.
|
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Certain Conversions Deemed Payment
|
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64
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ARTICLE FIFTEEN
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|
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CONVERSION OF SECURITIES
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|
|
SECTION 1501.
|
|
Applicability of Article
|
|
|
64
|
|
SECTION 1502.
|
|
Conversion Privilege and Conversion Price
|
|
|
65
|
|
SECTION 1503.
|
|
Exercise of Conversion Privilege
|
|
|
65
|
|
SECTION 1504.
|
|
Fractions of Shares
|
|
|
66
|
|
SECTION 1505.
|
|
Adjustment of Conversion Price
|
|
|
66
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|
-v-
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Page
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SECTION 1506.
|
|
Notice of Adjustments of Conversion Price
|
|
|
68
|
|
SECTION 1507.
|
|
Notice of Certain Corporate Action
|
|
|
68
|
|
SECTION 1508.
|
|
Company to Reserve Common Stock
|
|
|
69
|
|
SECTION 1509.
|
|
Taxes on Conversions
|
|
|
69
|
|
SECTION 1510.
|
|
Covenant as to Common Stock
|
|
|
69
|
|
SECTION 1511.
|
|
Cancellation of Converted Securities
|
|
|
69
|
|
SECTION 1512.
|
|
Provisions in Case of Consolidation, Merger or Sale of Assets
|
|
|
69
|
|
SECTION 1513.
|
|
Responsibility of Trustee
|
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|
70
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|
NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.
-vi-
INDENTURE, dated as of
, between First Horizon National Corporation, a corporation duly
organized and existing under the laws of the State of Tennessee (herein called the Company),
having its principal office at 165 Madison Avenue, Memphis, Tennessee 38103, and The Bank of New
York Mellon Trust Company, N.A., a national banking association duly organized and existing under
the laws of the United States of America, as Trustee (herein called the Trustee).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the Securities), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, the holders of Senior Indebtedness (as hereinafter defined) and
Entitled Person in respect of Other Financial Obligations (each as hereinafter defined) as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101.
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles, and, except as otherwise herein expressly
provided, the term generally accepted accounting principles with respect to any computation
required or permitted hereunder shall mean such accounting principles as are generally accepted in
the United States of America at the date of such computation;
(4) unless the context otherwise requires, any reference to an Article or a Section refers
to an Article or a Section, as the case may be, of this Indenture;
(5) 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; and
(6) reference to any gender includes the other gender.
Act, when used with respect to any Holder, has the meaning specified in Section 104.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, control when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms controlling and
controlled have meanings correlative to the foregoing.
Applicable Procedures of a Depositary means, with respect to any matter at any time, the
policies and procedures of such Depositary, if any, that are applicable to such matter at such
time.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.
Bank means (i) any institution which accepts deposits that the depositor has a legal right
to withdraw on demand and engages in the business of making commercial loans, and (ii) any trust
company.
Board of Directors means either the board of directors of the Company, or any duly
authorized committee of that board, or any committee of one or more officers of the Company
authorized by the Board of Directors to issue Securities.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.
Business Day, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in New York, New York or that Place of Payment are authorized or obligated by law or
executive order to close.
Commission means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
Common Stock includes any stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which is not subject to redemption by the
Company. However, subject to the provisions of Section 1512, shares issuable on conversion of
Securities shall include only shares of the class designated as Common Stock of the Company at the
date of this instrument or shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which are not subject to redemption by the Company;
provided
that if at any time there
shall be more than one such resulting
class, the shares of each such class then so issuable shall be substantially in the proportion
which the total number of shares of such class resulting from all such reclassifications bears to
the total number of shares of all such classes resulting from all such reclassifications.
-2-
Company means the Person named as the Company in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of
the Company by its Chief Executive Officer, its Chief Financial Officer, the Chairman of the Board
(if at that time the person holding that title is an officer of the Company), its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
Corporate Trust Office means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof is located at 2
North LaSalle Street, Suite 1020, Chicago, IL 60602, Attention: Corporate Trust Administration, or
such other address as the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or such other address as
such successor Trustee may designate from time to time by notice to the Holders and the Company).
corporation means a corporation, association, company, including, without limitation, a
limited liability company, joint-stock company or business trust.
Covenant Defeasance has the meaning specified in Section 1303.
Default has the meaning specified in Section 503.
Defaulted Interest has the meaning specified in Section 307.
Defeasance has the meaning specified in Section 1302.
Depositary means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 301.
Entitled Person means any Person entitled to payment in respect of an Other Financial
Obligations.
Event of Default has the meaning specified in Section 501.
Excess Proceeds has the meaning set forth in Section 1415(c).
Exchange Act means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.
Expiration Date has the meaning specified in Section 104.
Final Conversion Date, when used with respect to Securities of any series, means the last
day on which such Security shall be convertible into Common Stock.
Foreign Government Obligations has the meaning specified in Section 1304.
Global Security means a Security that evidences all or part of the Securities of any series
and bears the legend set forth in Section 204 (or such legend as may be specified as contemplated
by Section 301 for such Securities).
-3-
Holder means a Person in whose name a Security is registered in the Security Register.
Indenture means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term Indenture
shall also include the terms of particular series of Securities established as contemplated by
Section 301.
Initial Conversion Date, when used with respect to the Securities of any series, means the
first day on which such Security shall be convertible into Common Stock.
Initial Conversion Price, when used with respect to the Securities of any series, means the
price at which the Common Stock shall be delivered upon conversion of such Security, prior to any
adjustment of such price as provided herein.
Interest, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
Investment Company Act means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.
Maturity, when used with respect to any Security, means the date on which the principal of,
or an installment of principal of, such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
Notice of Default means a written notice of the kind specified in subparagraph (C) of the
definition of Default.
Officers Certificate means a certificate signed by the Chief Executive Officer, the Chief
Financial Officer, the Chairman of the Board (if at that time the person holding that title is an
officer of the Company), the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee.
One of the officers signing an Officers Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
Opinion of Counsel means a written opinion, reasonably acceptable to the Trustee, of
counsel, who may be counsel for the Company.
Original Issue Discount Security means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
Other Financial Obligations means, unless otherwise determined with respect to any series of
Securities pursuant to Section 301, (a) obligations of the Company under direct credit substitutes,
(b) obligations of, or any such obligation directly or indirectly guaranteed by, the Company for
purchased money or funds, (c) any deferred obligation of, or any such obligation directly or
indirectly guaranteed by, the Company incurred in connection with the acquisition of any business,
properties or assets not
-4-
evidenced by a note or similar instrument given in connection therewith,
and (d) all obligations of the Company to make payment pursuant to the terms of financial
instruments such as (i) securities contracts and foreign currency exchange contracts, (ii)
derivative instruments, such as swap agreements (including interest rate and foreign exchange rate
swap agreements), cap agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange rate agreements, options, commodity futures contracts and commodity options
contracts and (iii) financial instruments similar to those set forth in (d)(i) or (d)(ii) above;
provided
,
however
, that Other Financial Obligations shall not include (A) obligations on account of
Senior Indebtedness and (B) obligations on account of indebtedness for money borrowed ranking
pari
passu
with or subordinate to the Securities.
Outstanding, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided
,
however
, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities have given, made or taken
any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as
of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed
to be Outstanding shall be the amount of the principal thereof which would be due and payable as of
such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if,
as of such date, the principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be Outstanding shall
be the amount as specified or determined as contemplated by Section 301, (C) the principal amount
of a Security denominated in one or more foreign currencies, currency units or composite currencies
which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such
date in the manner provided as contemplated by Section 301, of the principal amount of such
Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other obligor, other than
securities held in trust or in a fiduciary capacity, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgees right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
-5-
Paying Agent means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.
Person means any individual, corporation, partnership, limited liability company, joint
venture, trust, unincorporated organization or government or any agency or political subdivision
thereof.
Place of Payment, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
Redemption Price, when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
Regular Record Date for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 301.
Responsible Officer, when used with respect to the Trustee, means any vice president, any
trust officer or assistant trust officer, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated officers and who
shall have direct responsibility for the administration of this indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
Securities Act means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.
Security Register and Security Registrar have the respective meanings specified in Section
305.
Senior Indebtedness, unless otherwise determined with respect to any series of Securities
pursuant to Section 301, means the principal of (and premium, if any) and interest on (a) all
indebtedness of the Company (including indebtedness of others guaranteed by the Company) whether
outstanding on the date of this Indenture or thereafter created, incurred or assumed, other than
the Securities which is (i)
for money borrowed or (ii) evidenced by a note or similar instrument given in connection with
the acquisition of any businesses, properties or assets of any kind, and (b) amendments, renewals,
extensions, modifications or refundings of any such indebtedness, unless in any case in the
instrument creating or evidencing any such indebtedness or pursuant to which the same is
outstanding it is provided that such indebtedness is not superior in right of payment to the
Securities or is to rank
pari passu
with or subordinate to the Securities.
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Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307.
Stated Maturity, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary means, with respect to any Person, a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person, or by such Person and one or more other Subsidiaries of such Person.
For the purposes of this definition, voting stock means stock which ordinarily has voting power
for the election of directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, Trust Indenture Act means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, Trustee as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
U.S. Government Obligation has the meaning specified in Section 1304.
Vice President, when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
vice president.
SECTION 102.
Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers Certificate, if to be given by an officer of the Company, or
an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (except for certificates provided for in Section 1004) shall include,
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
SECTION 103.
Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
SECTION 104.
Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred
to as the Act of the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer
authorized by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof, or may be proved in such
other manner as shall be deemed sufficient by the Trustee. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
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The ownership of Securities shall be proved by the Security Register.
Without limiting the generality of the foregoing, a Holder, including a Depositary that is a
Holder of a Global Security, may make, give or take, by proxy or proxies, duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted in this Indenture to be made, given or taken by Holders, and a Depositary
that is a Holder of a Global Security may provide its proxy or proxies to the beneficial owners of
interests in any such Global Security.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on or prior to the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to
institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section
512, in each case with respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on such record date. Nothing
in this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with no action by any
Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities
of the relevant series on or prior to the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the Companys expense, shall cause notice
of such record date, the proposed
-9-
action by Holders and the applicable Expiration Date to be given
to the Company in writing and to each Holder of Securities of the relevant series in the manner set
forth in Section 106.
With respect to any record date set pursuant to this Section, the party hereto which sets such
record date may designate any day as the Expiration Date and from time to time may change the
Expiration Date to any earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in writing, and to
each Holder of Securities of the relevant series in the manner set forth in Section 106, on or
prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day
after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
SECTION 105.
Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Administration; or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously furnished in writing to
the Trustee by the Company. The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or communications.
The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured
electronic methods; provided, however, that the Trustee shall have received an incumbency
certificate listing persons designated to give such instructions or directions and containing
specimen signatures of such designated persons, which such incumbency certificate shall be amended
and replaced whenever a person is to be added or deleted from the
listing. If the Company elects to
give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method)
and the Trustee in its discretion elects to act upon such instructions, the Trustees understanding
of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses,
costs or expenses arising directly or indirectly from the Trustees reliance upon and compliance
with such instructions. The Company agrees to assume all risks
arising out of the use of such electronic methods to submit instructions and directions to the
Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions,
and the risk or interception and misuse by third parties.
-10-
SECTION 106.
Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register or provided through the Applicable Procedures
of the Depositary, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 107.
Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108.
Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 109.
Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 110.
Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 111.
Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, the holders of Senior Indebtedness
and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
-11-
SECTION 112.
Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York.
SECTION 113.
Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security or the last date on which a Holder has the right to convert his Securities shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture
or of the Securities (other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if
any) or conversion of the Securities need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity;
provided
that no interest shall accrue as a result of such delay.
SECTION 114.
Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
ARTICLE TWO
SECURITY FORMS
SECTION 201.
Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article, or
in such other form as shall be established from time to time by or pursuant to a Board Resolution
or in one or more indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture or any
indentures supplemental hereto and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements placed thereon as the Company may deem appropriate
or as may be required to comply with the rules of any securities exchange or Depositary therefor or
as may, consistently herewith, be determined by the officers executing such Securities, as
evidenced by their execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
-12-
SECTION 202.
Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations thereunder.] THIS
NOTE IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
FIRST HORIZON NATIONAL CORPORATION
First Horizon National Corporation, a corporation duly organized and existing under the laws of
Tennessee (herein called the Company, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to
, or
registered assigns, the principal sum of
Dollars on
[if the Security is to bear interest
prior to Maturity, insert , and to pay interest thereon from
or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually on
and
in
each year, commencing
, at the rate
of
% per annum, until the principal hereof is paid or made
available for payment [if applicable, insert ;
provided
that any principal and premium, and any
such installment of interest, which is overdue shall bear interest at the rate of
% per annum
(to the extent that the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such interest shall be
payable on demand]. The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the
or
(whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such interest so payable,
but not so punctually paid or duly provided for, on any Interest Payment Date will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert The principal of this
Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of
% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due until they are
paid or made available for payment. Interest on any overdue principal or premium shall be payable
on demand. [Any such interest on overdue principal or premium which is not paid on demand shall
bear interest at the rate of
% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on any overdue interest shall be payable on
demand.]]
Payment of the principal of (and premium, if any) and [if applicable, insert any such]
interest on this Security will be made at the office or agency of the Company maintained for that
purpose in
, in such coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, against surrender of this Security in the
case of any payment due at the Stated Maturity of the principal hereof ; [if applicable, insert
;
provided
,
however
, that at the
-13-
option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register; and
provided
,
further
, that if this Security is a Global Security, payment may be made
pursuant to the Applicable Procedures of the Depositary as permitted in the Indenture.]
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
FIRST HORIZON NATIONAL CORPORATION
BY
Attest:
SECTION 203.
Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
(herein called the Indenture, which term shall have the meaning assigned to it in such
instrument), between the Company and
, as Trustee (herein called the Trustee, which term
includes any successor trustee under the Indenture), and reference is hereby made to the Indenture
for a statement of the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the holders of Senior Indebtedness, Entitled Persons, and the Holders
of the Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [
if applicable,
insert
, limited in aggregate principal amount to $
] [,
provided
that the Company may, without the
consent of any Holder, at any time and from time to time increase the initial principal amount as
provided in the Indenture]
$
].
[If applicable, insert The Securities of this series are subject to redemption upon not
less than 30 days notice by mail, [if applicable, insert (1) on
in any year commencing with
the year
and ending with the year
through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert
on or after
,
20
], as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable,
insert on or before
,
%,
and if redeemed] during the 12-month period beginning
of the
years indicated,
-14-
and thereafter at a Redemption Price equal to
% of the principal amount, together in the case of
any such redemption [if applicable, insert (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert Subject to and in compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time on or after the opening of
business on the Initial Conversion Date and on or before the close of business on the Final
Conversion Date, or in case this Security or a portion hereof is called for redemption, then in
respect of this Security or such portion hereof until and including, but (unless the Company
defaults in making the payment due upon redemption) not after, the close of business on the
Redemption Date, to convert this Security (or any portion of the principal amount hereof which is
$[1,000] or an integral multiple thereof), at the principal amount hereof, or of such portion, into
fully paid and non-assessable shares (calculated as to each conversion to the nearest 1/100 of a
share) of Common Stock of the Company at the Initial Conversion Price (or at the current adjusted
conversion price if an adjustment has been made as provided in the Indenture) by surrender of this
Security, duly endorsed or assigned to the Company or in blank, to the Company at its office or
agency in the Borough of Manhattan, The City of New York, accompanied by written notice to the
Company that the Holder hereof elects to convert this Security, or if less than the entire
principal amount hereof is to be converted, the portion hereof to be converted, and, in case such
surrender shall be made during the period from the close of business on any Regular Record Date
next preceding any Interest Payment Date (unless this Security or the portion thereof being
converted has been called for redemption on a Redemption Date within such period), also accompanied
by payment in New York Clearing House or other funds acceptable to the Company of an amount equal
to the interest payable on such Interest Payment Date on the principal amount of this Security then
being converted. Subject to the aforesaid requirement for payment in the case of a conversion
after the Regular Record Date next preceding any Interest Payment Date and on or before such
Interest Payment Date, to the right of the Holder of this Security (or any Predecessor Security) of
record at such Regular Record Date to receive an installment of interest (with certain exceptions
provided in the Indenture), no payment or adjustment is to be made on conversion for interest
accrued hereon or for dividends on the Common Stock issued on conversion. No fractions of shares
or scrip representing fractions of shares will be issued on conversion, but instead of any
fractional interest the Company shall pay a cash adjustment as provided in the Indenture. The
conversion price is subject to adjustment as provided in the Indenture. In addition, the Indenture
provides that in case of certain consolidations or mergers to which the Company is a party or the
transfer of substantially all of the assets of the Company, the Indenture shall be amended, without
the consent of any Holders of Securities, so that this Security, if then outstanding, will be
convertible thereafter, during the period this Security shall be convertible as specified above,
only into the kind and amount of securities, cash and other property receivable upon the
consolidation, merger or transfer by a holder of the number of shares of Common Stock into which
this Security might have been converted immediately prior to such consolidation, merger or transfer
(assuming such holder of Common Stock failed to exercise any rights of election and received per
share the kind and amount received per share by a plurality of non-electing shares), assuming, if
such consolidation, merger or transfer is prior to the Initial Conversion Date, that is Security
were convertible at the time of such consolidation, merger or transfer at the Initial Conversion
Price specified above as adjusted from the date of establishment of the Initial Conversion Price to
such time pursuant to the Indenture.]
[If applicable, insert The Securities of this series are subject to redemption upon not
less than 30 days notice by mail, (1) on
in any year commencing with the year
and ending with
the year
through operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table
-15-
below, and (2) at any time [if applicable, insert on or after
], as a
whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the principal amount) set
forth in the table below: If redeemed during the 12-month period beginning ___________ of the
years indicated,
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Redemption Price For
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Redemption Price For
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Redemption Otherwise
|
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Redemption Through
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Than Through
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Operation of the
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Operation of the
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Year
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Sinking Fund
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Sinking Fund
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and thereafter at a Redemption Price equal to
% of the principal amount, together in the case of
any such redemption (whether through operation of the sinking fund or otherwise) with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable, insert Notwithstanding the foregoing, the Company may not, prior to
,
redeem any Securities of this series as contemplated by [if applicable, insert Clause (2) of]
the preceding paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less than
% per annum.]
[If applicable, insert The sinking fund for this series provides for the redemption on
in
each year beginning with the year
and ending with the year
of [if applicable, insert not
less than $
(mandatory sinking fund) and not more than] $
aggregate principal amount of
Securities of this series. Securities of this series [if applicable, insert converted pursuant
to the Indenture or] acquired or redeemed by the Company otherwise than through [if applicable,
insert mandatory] sinking fund payments may be credited against subsequent [if applicable,
insert mandatory] sinking fund payments otherwise required to be made [if applicable, insert ,
in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert In the event of redemption
[if applicable, insert or conversion] of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed [if applicable, insert or unconverted]
portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
The Company covenants and agrees, and each Holder of this Security, by his acceptance hereof,
likewise covenants and agrees, that, to the extent and in the manner set forth in Article Fourteen,
the indebtedness represented by the Securities and the payment of principal of (and premium, if
any) and interest on each and all of the Securities are hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all Senior Indebtedness. In addition,
this Security is also issued subordinate and subject to the provisions of the Indenture regarding
prior payment in full to Entitled
Persons in respect of Other Financial Obligations. The Indenture also provides that if, upon
the occurrence of certain events of bankruptcy or insolvency relating to the Company, there
remains, after giving effect to such subordination provisions, any amount of cash, property or
securities available for payment or distribution in respect of Securities of this series (as
defined in the Indenture, Excess
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Proceeds), and if, at such time, any Entitled Person has not
received payment in full of all amounts due or to become due on or in respect of Other Financial
Obligations, then such Excess Proceeds shall first be applied to pay or provide for the payment in
full of such Other Financial Obligations before any payment or distribution may be made in respect
of Securities of such series. Each Holder of this Security, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination and payment of
Excess Proceeds as provided in the Indenture and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes.
[If applicable, insert The Indenture contains provisions for defeasance at any time of [the
entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default
with respect to this Security] [, in each case] upon compliance with certain conditions set forth
in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert If an Event of Default
with respect to Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to insert formula for determining the
amount.]
[Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest
on any overdue principal, premium and interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Companys obligations in respect of the payment
of the principal of and premium and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
indemnity reasonably satisfactory to the Trustee, and the Trustee shall not have received from the Holders of
a majority in principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any such proceeding,
for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder
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of this Security for the enforcement of any payment of
principal hereof or any premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed [if applicable, insert or to convert this Security as
provided in the Indenture.]
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $
and any integral multiple of $
in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
[
If applicable, insert
Interest on the principal balance of this Security shall be
calculated on the basis of a [365 or 366 day year, as appropriate, for the actual number of days
elapsed] [360 day year of twelve 30 day months.]]
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
SECTION 204.
Form of Legend for Global Securities in Global Form.
If any Security of a series is issuable in global form, such Global Security may provide that
it shall represent the aggregate amount of Outstanding Securities from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or
any increase or decrease in the amount, of Outstanding Securities represented thereby shall be
made by the Trustee and in such manner as shall be specified in such Global Security.
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Global Securities may be issued in either temporary or permanent form. Permanent Global
Securities will be issued in definitive form.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 205.
Form of Trustees Certificate of Authentication.
The Trustees certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A, as Trustee
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By:
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Date:___________________________
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Authorized Officer
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ARTICLE THREE
THE SECURITIES
SECTION 301.
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided,
in an Officers Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish the Securities of the
series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to
-19-
Section 304, 305, 306, 906, 1107 or 1503 and except for any Securities which, pursuant
to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable), or the method of determination
thereof, at which any Securities of the series shall bear interest, if any, the date or dates from
which any such interest shall accrue, or the method of determination thereof, the Interest Payment
Dates on which any such interest shall be payable and the Regular Record Date for any such interest
payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and interest on any Securities
of the series shall be payable;
(7) the period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series may be redeemed, in whole or in part, at the
option of the Company and, if other than by a Board Resolution, the manner in which any election by
the Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any Securities of the series
pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the
period or periods within which, the price or prices at which and the terms and conditions upon
which any Securities of the series shall be redeemed or purchased, 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 any Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or interest on any Securities of the series
may be determined with reference to a financial or economic measure, or to an index or pursuant to
a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the currency, currencies,
currency units or composite currency in which the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of determining the equivalent thereof in
the currency of the United States of America for any purpose, including for purposes of the
definition of Outstanding in Section 101;
(12) if the principal of or any premium or interest on any Securities of the series is to be
payable, at the election of the Company or the Holder thereof, in one or more currencies, currency
units or composite currencies other than that or those in which such Securities are stated to be
payable, the currency, currencies, currency units or composite currencies in which the principal of
or any premium or interest on such Securities as to which such election is made shall be payable,
the periods within which and the terms and conditions upon which such election is to be made and
the amount so payable (or the manner in which such amount shall be determined);
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(13) if other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any Securities of the series
will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which
shall be deemed to be the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall be due and payable upon
any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any
date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any specified part, shall
be defeasible pursuant to Section 1302 or Section 1303 or both such Sections and, if other than by
a Board Resolution, the manner in which any election by the Company to defease such Securities
shall be evidenced;
(16) if applicable, that any Securities of the series shall be issuable in whole or in part in
the form of one or more Global Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 204 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 305 in
which any such Global Security may be exchanged in whole or in part for Securities registered, and
any transfer of such Global Security in whole or in part may be registered, in the name or names of
Persons other than the Depositary for such Global Security or a nominee thereof;
(17) any addition to or change in the Events of Default which applies to any Securities of the
series and any change in the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in Article Ten which applies to
Securities of the series;
(19) if applicable, that the Securities of the series shall be convertible pursuant to Article
Fifteen, and the Initial Conversion Price, the Initial Conversion Date, the Final Conversion Date
and any other terms relating to the conversion of the Securities as provided herein;
(20) if other than as specified in Section 501, the Events of Default applicable to the
Securities of such series;
(21) if other than as specified in Section 503, the Defaults applicable with respect to the
Securities of the series;
(22) if other than as specified in Article Fourteen, the subordination provisions applicable
with respect to the Securities of the series, including a different definition of Senior
Indebtedness, Entitled Persons or Other Financial Obligations or the elimination of one or
more of those definitions; and
(23) any other terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section 901(5)).
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All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided, in the Officers
Certificate referred to above or in any such indenture supplemental hereto. All Securities of any
one series need not be issued at one time and, unless otherwise provided or contemplated by this
Section 301 with respect to a series of Securities, additional Securities of a series may be issued
at the option of the Company, without the consent of any Holder, at any time and from time to time.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers Certificate setting forth the terms of the series.
SECTION 302.
Denominations.
The Securities of each series shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by Section 301. In the absence of
any such specified denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral multiple in excess
thereof.
SECTION 303.
Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board of
Directors, its Vice Chairman of the Board of Directors, its President or one of its Vice
Presidents, attested by its Secretary, one of its Assistant Secretaries or other authorized Person
of the Company. The signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of issuance of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If any Security shall be represented by a permanent Global Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owners interest therein
upon original issuance of such Security or upon exchange of a portion of a temporary Global
Security shall be deemed to be delivered in connection with the original issuance of such
beneficial owners interest in such permanent Global Security. If the form or terms of the
Securities of the series have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall receive,
and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(1) if the form of such Securities has been established by or pursuant to Board Resolution as
permitted by Section 201, that such form has been established in conformity with the provisions of
this Indenture;
-22-
(2) if the terms of such Securities have been established by or pursuant to Board Resolution
as permitted by Section 301, that such terms have been established in conformity with the
provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors rights and to general
equity principles.
If such form or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, including where the size of an
Outstanding series of Securities is increased as contemplated in Section 301, it shall not be
necessary to deliver the Officers Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for
all purposes of this Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304.
Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any
-23-
authorized denominations and of like tenor and aggregate principal amount. Until so
exchanged, the temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series and tenor.
SECTION 305.
Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the Security Register) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby appointed
Security Registrar for the purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or
agency of the Company in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, the Company shall not be required (A) to issue, register the transfer of or exchange any
Securities of that series (or of that series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part or (C) issue, register the transfer of or exchange any Security
that has been surrendered for repayment at the option of the Holder, except the portion, if any, of
the Security that is not to be repaid.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
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(1) Each Global Security authenticated under this Indenture shall be registered in the name of
the Depositary designated for such Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged
in whole or in part for Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security and no successor Depositary
has been appointed within 90 days or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to
such Global Security, (C) the Company, in its sole discretion, has determined that Securities of
any series issued in the form of one or more Global Securities shall no longer be represented by
such Global Security or Global Securities or (D) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be
made in whole or in part, and all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this
Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof.
SECTION 306.
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled
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to all the benefits of this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
SECTION 307.
Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series and the date of
the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the manner set forth in Section
106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series 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.
Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
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In the case of any convertible Security which is converted after any Regular Record Date and
on or prior to the next succeeding Interest Payment Date (other than any Security whose Maturity is
prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment
Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such
interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the close of business
on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any convertible Security which is converted, interest whose Stated
Maturity is after the date of conversion of such Security shall not be payable.
SECTION 308.
Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 307) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 309.
Cancellation.
All Securities surrendered for payment, redemption, conversion, registration of transfer or
exchange or conversion or for credit against any sinking fund payment or analogous obligation
shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall
be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the Company may have acquired
in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to
the Trustee) for cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as directed by a Company Order.
SECTION 310.
Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 311.
CUSIP Numbers
The Company in issuing the Securities may use CUSIP numbers and, if so, the Trustee shall
use CUSIP numbers in notices of redemption as a
convenience to Holders;
provided
,
however
, that any
such notice may state that no representation is made as to the correctness of such numbers either
as printed on the Securities or as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company will promptly
notify the Trustee in writing of any change in the CUSIP numbers. Any such redemption shall not
be affected by any defect in or omission of such numbers.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401.
Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect with respect to
Securities of any series specified in such Company Request (except as to any surviving rights of
conversion, registration of transfer or exchange of Securities herein expressly provided for or in
the terms of such Security), and the Trustee, upon receipt of Company Request and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when:
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i) Securities
of such series which have been mutilated, destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Securities of such series for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable; or
(ii) will become due and payable at their Stated Maturity within one
year; or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation (other than Securities which have been mutilated, destroyed,
lost or stolen and which have been replaced or paid as provided in Section
306), for principal and any premium and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company
in respect of such Securities; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to such Securities have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, with respect to Securities
of any series pursuant to this Section 401, the obligations of the Company to the Trustee under
Section 607, the
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obligations of the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section 1003, in each case
with respect to such Securities, shall survive such satisfaction and discharge.
SECTION 402.
Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and any premium and interest for whose payment
such money has been deposited with the Trustee. Money deposited and held in trust pursuant to this
Section 402 shall not be subject to claims of the holders of Senior Indebtedness or of Entitled
Persons under Article Fourteen. All moneys deposited with the Trustee pursuant to Section 401 (and
held by it or the Paying Agent) for the payment of Securities subsequently converted shall be
returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
SECTION 501.
Events of Default.
Event of Default, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provision of Article Fourteen if applicable to a series of Securities or be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):
(1) the entry by a court or governmental authority having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B)
a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of any substantial part
of its property (other than a conservator or other similar official in respect of a Bank), or
ordering the winding up or liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect for a period of 60
consecutive days;
(2) the commencement by the Company of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property (other than a conservator or
other similar official in respect of a Bank), or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
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its debts generally as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(3) any other Event of Default provided with respect to Securities of that series.
SECTION 502.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may declare the principal amount of
all the Securities of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be specified by the
terms thereof) to be due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(A) all overdue interest on all Securities of that series;
(B) the principal of (and premium, if any, on) any Securities of that series which have
become due otherwise than by such declaration of acceleration and any interest thereon at
the rate or rates prescribed therefor in such Securities;
(C) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2) all Defaults with respect to Securities of that series, other than the non-payment of the
principal of Securities of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503.
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days;
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(2) default is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof; or
(3) default is made in the making or satisfaction of any sinking fund payment or analogous
obligation when the same becomes due pursuant to the terms of such Security, the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal and any premium, interest and sinking
fund obligation and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal, premium or sinking fund obligation and on any overdue interest,
at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its
own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Security or Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever situated.
Default, wherever used herein with respect to Securities of any series, means any one of the
following events (whatever the reason for such Default and whether it shall be occasioned by the
provisions of Article Fourteen or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or governmental body):
(A) an Event of Default with respect to any Securities of that series;
(B) the events referred to in subsections 503(1) through (3) above with respect to any
Securities of that series;
(C) default in the performance, or breach, of any covenant or warranty of the Company
in this Indenture (other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 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 principal amount of the Outstanding
Securities of that series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a Notice of Default hereunder; or
(D) any other Default provided with respect to Securities of that series.
If a Default with respect to Securities of any series occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as the Trustee shall deem
necessary to protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or
to enforce any other proper remedy.
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SECTION 504.
Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors or other similar
committee.
SECTION 505.
Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto. Any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust. Any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 506.
Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: Subject to Article Fourteen, to the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal and any premium and
interest, respectively; and
THIRD: To the Company.
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SECTION 507.
Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing Default
with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that
series shall have made written request to the Trustee to institute proceedings in respect of such
Default in its own name as Trustee hereunder;
(3) such
Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 508.
Unconditional Right of Holders to Receive Principal, Premium and Interest or to
Convert.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date) and, if
applicable, to convert such Security in accordance with Article Fifteen and to institute suit for
the enforcement of any such payment and right to convert, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509.
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
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SECTION 510.
Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511.
Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Default shall impair any such right or remedy or constitute a waiver of
any such Default or an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512.
Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture; and
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 513.
Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default:
(1) in the payment of the principal of or any premium or interest on any Security of such
series; or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent thereon.
SECTION 514.
Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any
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such party litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any
court to require such an undertaking or to make such an assessment in any suit instituted by the
Company or the Trustee.
SECTION 515.
Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601.
Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such certificates or
opinions which by any 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) In case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by
a Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
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(3) 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 Holders of a
majority in principal amount of the Outstanding Securities of any series relating to
the time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 602.
Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give
the Holders of Securities of such series notice of such default as and to the extent provided by
the Trust Indenture Act; provided, however, that in the case of any default of the character
specified in Section 503(c) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term default means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603.
Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers Certificate;
(4) the Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such
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Holders shall have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney, at the sole cost of the Company, and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;
(9) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder;
(10) the Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture; and
(11) the
Trustee shall not be deemed to have notice of any Default or Event of
Default unless the Trustee has knowledge thereof.
SECTION 604.
Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605.
May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
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SECTION 606.
Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 607.
Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such reasonable compensation as the Company and
the Trustee shall from time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as shall be determined to have been caused by its negligence or willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability, claim,
damage or expense incurred without negligence or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an Event of Default,
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 608.
Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a trustee under this Indenture with respect to Securities of more than one
series.
SECTION 609.
Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such, and has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust
Office or agency in the Borough of Manhattan, The City of New York. If any such Person publishes
reports of condition at least annually,
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pursuant to law or to the requirements of its supervising or examining authority, then for the
purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such Person shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the Trustee with respect
to the Securities of any series shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 610.
Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company.
The Trustee may be removed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
If the instrument of acceptance by a successor Trustee required by Section 611 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of resignation or
removal, the resigning or removed Trustee may petition, in the case of removal, at the expense of
the Company, any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security for at least six months;
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after
written request therefor by the Company or by any such Holder; 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, (A) the Company by a Board Resolution may remove the Trustee with respect
to all Securities or the Securities of any series, or (B) subject to Section 514, any Holder who
has been a bona fide Holder of a Security of any 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 with respect to all Securities of such series and the appointment of a
successor Trustee or Trustees with respect thereto.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only
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one Trustee with respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611.
Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges (including reasonable attorneys fees and expenses)
hereunder, execute and deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring
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Trustee with respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
SECTION 612.
Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.
SECTION 613.
Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor).
SECTION 614.
Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the Trustees
certificate of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal or State authority.
If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time an
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Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 106 to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustees certificate of
authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701.
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not later than January 15 and July 15 in each year, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each
series as of the preceding
or
, as the case may be; and
(2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished; excluding from any such list names and
addresses received by the Trustee in its capacity as Security Registrar.
SECTION 702.
Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in upon receipt
of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 703.
Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than 12 months shall be
transmitted no later than January 31 in each calendar year, commencing in 2011.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will notify the Trustee when any Securities are listed or delisted on any
stock exchange.
SECTION 704.
Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, only as and to the extent
required
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pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such
Act. For the purpose of this Section 704, the Company makes no representation, warranty, covenant or agreement to the Holders of any
series of Securities as to the accuracy or completeness of any such document or report or as to the
timeliness of any such filing with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801.
Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person unless:
(1) in case the Company shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation, partnership or other entity, shall be organized and validly
existing under the laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of
and any premium and interest on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or observed and, if
applicable, shall have provided for conversion rights in accordance with Section 1512;
(2) immediately after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary as a result of such transaction as having
been incurred by the Company or such Subsidiary at the time of such transaction, no Default, and no
event which, after notice or lapse of time or both, would become a Default, shall have happened and
be continuing; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802.
Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the
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same effect as if such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901.
Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of the Holders of all or any series
of Securities (and if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Company;
(3) to add any additional Defaults or Events of Default for the benefit of the Holders of all
or any series of Securities (and if such additional Events of Default are to be for the benefit of
less than all series of Securities, stating that such additional Events of Default are expressly
being included solely for the benefit of such series);
(4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form;
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities, provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of
any such Security with respect to such provision or (B) shall become effective only when there is
no such Security Outstanding;
(6) to secure all or any series of the Securities (and if such additional security is to be
for the benefit of less than all series of Securities, stating that such additional security is
expressly being included solely for the benefit of such series);
(7) to establish the form or terms of Securities of any series as permitted by Sections 201
and 301;
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more series and to 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 611;
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(9) to add to, change or eliminate any of the provisions of this Indenture to such extent as
shall be necessary to comply with the rules or regulations on any securities exchange or automated
quotation system on which any of the Securities may be listed or traded;
(10) to add to, change or eliminate any of the provisions of Article Fourteen in respect of
any series of Securities, including Outstanding Securities, provided that any such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders of Securities of any
series in any material respect;
(11) to add to, change or eliminate any of the provisions of Article Fifteen in respect of any
series of Securities, including Outstanding Securities;
provided
that any such action pursuant to
this Clause (10) shall not adversely affect the interests of the Holders of Securities of any
series in any material respect;
(12) to make provision with respect to the conversion rights of Holders pursuant to the
requirements of Section 1512, if applicable;
(13) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, to eliminate any conflict between the
terms hereof and the Trust Indenture Act or to make any other provisions with respect to matters or
questions arising under this Indenture;
provided
that such action pursuant to this Clause (11)
shall not adversely affect the interests of the Holders of Securities of any series in any material
respect; or
(14) to supplement any of the provisions of the Indenture to such extent as shall be necessary
to permit or facilitate the satisfaction and discharge or defeasance or covenant defeasance of any
series of Securities pursuant to Articles Four and Thirteen, respectively;
provided
that any such
action shall not adversely affect the interests of the Holders of such series or any other series
of Securities in any material respect.
SECTION 902.
Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502, or adversely affect
any right of repayment at the option of the Holder of any Security, or reduce the amount of, or
postpone the date fixed for, the payment of any sinking fund payment or analogous obligation, or
change any Place of Payment where, or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or modify the provisions of this Indenture
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with respect to the subordination of the Securities in a manner adverse to the Holders, or
adversely affect the right to convert any Security as provided in Article Fifteen (except as
permitted by Section 901(9));
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section or Section 513, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security affected thereby;
provided
,
however
, that this clause shall not be deemed to require the consent of any Holder with respect to
changes in the references to the Trustee and concomitant changes in this Section, or the deletion
of this proviso, in accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental hereto. If a record date
is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date.
SECTION 903.
Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall receive, and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel and Officers Certificate stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the Trustees own rights,
duties or immunities under this Indenture, but the Trustee shall, subject to the first sentence of
this Section 903, enter into all other supplemental indentures requested by the Company.
SECTION 904.
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
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SECTION 905.
Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION 906.
Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities
of such series.
SECTION 907.
Subordination Unimpaired.
No provision in any supplemental indenture that adversely affects the superior position of the
holders of Senior Indebtedness then outstanding or Entitled Persons in respect of Other Financial
Obligations then outstanding shall be effective against holders of Senior Indebtedness or Entitled
Persons without the consent of such holders or Entitled Persons.
ARTICLE TEN
COVENANTS
SECTION 1001.
Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture.
SECTION 1002.
Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange, where
convertible Securities may be surrendered for conversion and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
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SECTION 1003.
Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of or any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held
as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the Securities of that series)
in the making of any payment in respect of the Securities of that series, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004.
Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers Certificate, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without regard to any period of
grace or
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requirement of notice provided hereunder) and, if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may have knowledge.
SECTION 1005.
Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided pursuant to Section
301(18), 901(2) or 901(7) for the benefit of the Holders of such series, if before the time for
such compliance the Holders of not less than a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101.
Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for such Securities) in accordance with this Article.
SECTION 1102.
Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Company of less than all the Securities of any series (including
any such redemption affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers Certificate evidencing compliance with such restriction.
SECTION 1103.
Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of
such series and of a specified tenor are to be redeemed or unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by pro rata, by lot or by such method as in accordance with the
regulations of the Depositary, if any, and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that the unredeemed
portion of the principal amount of any Security shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be
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redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence. If any convertible Security selected for
partial redemption is converted in part before termination of the conversion right with respect to
the portion of the Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Convertible Securities which have been
converted during a selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purposes of such selection.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting a series of Securities comprised of only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed
portion of the principal amount of the Security shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104.
Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series consisting of more than a single
Security are to be redeemed, the identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be redeemed and, if less than
all the entire principal amount of any series consisting of a single Security are to be redeemed,
the portion of the principal amount of the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date;
(5) if the Securities to be redeemed are Convertible Securities, the Conversion Price, the
date on which the right to convert the Securities to be redeemed will terminate and the place or
places where such Securities may be surrendered for conversion;
(6) the CUSIP numbers, if any, of the Securities to be redeemed;
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(7) the place or places where each such Security is to be surrendered for payment of the
Redemption Price; and
(8) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request and provision of such notice information, by the
Trustee in the name and at the expense of the Company and, unless otherwise specified, shall be
irrevocable; provided, however, in the latter case the Trustee shall be given at least 10 days
prior notice of the requested date of the giving of the notice or such shorter time as may be
acceptable to the Trustee.
SECTION 1105.
Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date other than any convertible Securities called for redemption
on that date which have been converted prior to the date of such deposit.
If any convertible Security called for redemption is converted, any money deposited with the
Trustee or with any Paying Agent or so segregated and held in trust for the redemption of such
Security shall (subject to any right of the Holder of such Security or any Predecessor Security to
receive interest as provided in the last paragraph of Section 307) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such trust.
SECTION 1106.
Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. In addition, such Securities
shall, if convertible by their terms into Common Stock, cease from and after the date fixed for
redemption (unless an earlier date shall be specified in a Board Resolution, Officers Certificate
or executed supplemental indenture or pursuant to which the terms of the Securities of such series
were established) to be convertible into Common Stock (unless the Company shall default in the
payment of the Redemption Price). Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security. In addition, such Security shall, if convertible
by its terms into Common Stock, remain convertible into Common Stock until the principal (and
premium, if any) of such Security shall have been paid or duly provided for.
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SECTION 1107.
Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201.
Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of any series except as otherwise specified as contemplated by Section 301 for such
Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities 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 such Securities is herein referred to as an optional sinking
fund payment. If provided for by the terms of Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of a series as provided for by the terms
of such Securities.
SECTION 1202.
Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
converted pursuant to Article Fifteen or which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities or which have otherwise been
acquired by the Company, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such Securities; provided that
the Securities to be so credited have not been previously so credited. The Securities to be so
credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as
specified in the Securities so to be redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203.
Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for Securities of any series,
the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the
portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and
will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to
each such sinking fund payment date, the Trustee shall select the Securities of such series to be
redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name
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of and at the expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301.
Companys Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or Section 1303 applied
to any Securities or any series of Securities, as the case may be, designated pursuant to Section
301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable
requirements provided pursuant to Section 301 and upon compliance with the conditions set forth
below in this Article. Any such election shall be evidenced by a Board Resolution or in another
manner specified as contemplated by Section 301 for such Securities.
SECTION 1302.
Defeasance and Discharge.
Upon the Companys exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations, and the provisions of Article Fourteen shall cease to be
effective, with respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called Defeasance). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of such Securities to receive, solely from the trust fund described in Section
1304 and as more fully set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Companys obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance
with this Article, the Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have Section 1303 applied
to such Securities.
SECTION 1303.
Covenant Defeasance.
Upon the Companys exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (1) the Company shall be released from
its obligations under any covenants provided pursuant to Section 301(18), 901(2) or 901(7) for the
benefit of the Holders of such Securities, and (2) the occurrence of any event specified in Section
501(3) shall be deemed not to be an Event of Default, and (3) the occurrence of any event specified
in subparagraph (C) of the definition of default and any such covenants provided pursuant to
Section 301(18), 901(2) and 901(7) shall be deemed not to be or result in a Default and (4) the
provisions of Article Fourteen shall cease to be effective, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set forth in Section
1304 are satisfied (hereinafter called Covenant Defeasance). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set forth in any such
specified Section or Article Fourteen, whether directly or indirectly by reason of any reference
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elsewhere herein to any such Section or Article or by reason of any reference in any such
Section or Article to any other provision herein or in any other document, but the remainder of
this Indenture and such Securities shall be unaffected thereby.
SECTION 1304.
Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or Section 1303 to
any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee which satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Indenture applicable to it as if it were the Trustee hereunder)
as trust funds in trust for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) in the
case of Securities of a series denominated in a foreign currency, money in such foreign currency or
Foreign Government Obligations of the foreign government or governments issuing such foreign
currency which through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due date of any
payment, such foreign currency in an amount or (B) in the case of Securities denominated in U.S.
dollars, U.S. dollars or U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, U.S. dollars in an amount, or (C) a combination of
money and U.S. Government Obligations or Foreign Government Obligations (as applicable), in each
case sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such Securities. As used herein,
U.S. Government Obligation means (x) any security which is (i) a direct obligation of the United
States of America for the payment of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and
held by such bank for the account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt. As used herein, Foreign Government
Obligation means any security denominated in a foreign currency which is (i) a direct obligation
of a foreign government or governments for the payment of which the full faith and credit of such
foreign government or governments is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of such foreign government or governments
the payment of which is unconditionally guaranteed as a full faith and credit obligation by such
foreign government, which, in either case (i) or (ii) is not callable or redeemable at the option
of the issuer thereof.
(2) In the event of an election to have Section 1302 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date of this instrument, there has been a change
in the applicable Federal
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income tax law, in either case (x) or (y) to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit, Defeasance and discharge
were not to occur.
(3) In the event of an election to have Section 1303 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and Covenant Defeasance were
not to occur.
(4) The Company shall have delivered to the Trustee an Officers Certificate to the effect
that neither such Securities nor any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would become, a Default with
respect to such Securities or any other Securities shall have occurred and be continuing at the
time of such deposit or, with regard to any such event specified in Sections 501(1) and (2), at any
time on or prior to the 90th day after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period applicable to the Company under Federal
or State law in respect of such deposit (it being understood that this condition shall not be
deemed satisfied until after the expiration of such period).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
(7) At the time of such deposit, (A) no default in the payment of all or a portion of
principal of (or premium, if any) or interest on any Senior Indebtedness shall have occurred and be
continuing, and no event of default with respect to any Senior Indebtedness shall have occurred and
be continuing and shall have resulted in such Senior Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and payable and (B) such
Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the Company is a party or by which it is
bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act unless
such trust shall be registered under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with including any conditions imposed in connection therewith
pursuant to Section 301.
SECTION 1305.
Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money, U.S. Government
Obligations and Foreign Government Obligations (including the proceeds thereof) deposited with the
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Trustee or other qualifying trustee (solely for purposes of this Section and Section 1306, the
Trustee and any such other trustee are referred to collectively as the Trustee) pursuant to
Section 1304 in respect of any Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held in trust need not
be segregated from other funds except to the extent required by law. Money, U.S. Government
Obligations and Foreign Government Obligations so held in trust shall not be subject to the
provisions of Article Fourteen.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations or Foreign Government Obligations deposited
pursuant to Section 1304 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of Outstanding
Securities of the relevant series.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money or U.S. Government Obligations or
Foreign Government Obligations held by it as provided in Section 1304 with respect to any
Securities which, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
SECTION 1306.
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect
to such Securities in accordance with this Article;
provided
,
however
, that if the Company makes
any payment of principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401.
Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this
Article and except to the extent otherwise provided pursuant to Section 301(22), the indebtedness
represented by the Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities are hereby expressly made subordinate and subject in
right of payment to the prior payment in full of all Senior Indebtedness and, to the extent set
forth in this Article, all Other Financial Obligations.
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SECTION 1402.
Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection therewith, relative
to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution
or other winding up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event the holders of
Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become
due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in
money or moneys worth, before the Holders of the Securities are entitled to receive any payment on
account of principal of (or premium, if any) or interest on the Securities, and to that end the
holders of Senior Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash, property or
securities, including any such payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Company being subordinated to the payment of
the Securities, which may be payable or deliverable in respect of the Securities in any such case,
proceeding, dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or
the Holder of any Security shall have received any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any other indebtedness
of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness
is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of
such payment or distribution, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness.
For purposes of this Article only, 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 which are
subordinated in right of payment to all Senior Indebtedness which may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the Securities are so subordinated
as provided in this Article. The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following the conveyance or
transfer of its properties and assets substantially as an entirety to another Person upon the terms
and conditions set forth in Article Eight shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and
liabilities of the Company for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case may be, shall, as a
part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in
Article Eight.
SECTION 1403.
Prior Payment to Senior Indebtedness Upon Acceleration of Securities.
In the event that any Securities are declared due and payable before their Stated Maturity,
then and in such event the holders of Senior Indebtedness shall be entitled to receive payment in
full of all amounts due or to become due on or in respect of all Senior Indebtedness or provision
shall be made for
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such payment in money or moneys worth, before the Holders of the Securities are entitled to
receive any payment (including any payment which may be payable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of the Securities) by the
Company on account of the principal of (or premium, if any) or interest on the Securities or on
account of the purchase or other acquisition of Securities;
provided
,
however
, that nothing in this
Section shall prevent the satisfaction of any sinking fund payment in accordance with Article
Twelve by delivering and crediting pursuant to Section 1202 Securities which have been acquired
(upon redemption or otherwise) prior to such declaration of acceleration.
In the event that, notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and
if such fact shall, at or prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect to which Section
1402 would be applicable.
SECTION 1404.
No Payment When Senior Indebtedness in Default.
(a) In the event and during the continuation of any default in the payment of principal of
(or premium, if any) or interest on any Senior Indebtedness beyond any applicable grace period with
respect thereto, or in the event that any event of default with respect to any Senior Indebtedness
shall have occurred and be continuing permitting the holders of such Senior Indebtedness (or a
trustee on behalf of the holders thereof) to declare such Senior Indebtedness due and payable prior
to the date on which it would otherwise have become due and payable, unless and until such event of
default shall have been cured or waived or shall have ceased to exist and such acceleration shall
have been rescinded or annulled, or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or event of default, then no payment (including any payment
which may be payable by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities) shall be made by the Company on account of principal
of (or premium, if any) or interest on the Securities or on account of the purchase or other
acquisition of Securities;
provided
,
however
, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article Twelve by delivering and
crediting pursuant to Section 1202 Securities which have been acquired (upon redemption or
otherwise) prior to such default in payment or event of default.
In the event that, notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and
if such fact shall, at or prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect to which Section
1402 would be applicable.
SECTION 1405.
Payment Permitted in Certain Situations.
Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities
shall prevent (a) the Company, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of creditors or other
marshalling of assets and liabilities of the Company referred to in Section 1402 or under the
conditions described in Section 1403
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or 1404, from making payments at any time of principal of (and premium, if any) or interest on
the Securities or (b) the application by the Trustee of any money deposited with it hereunder to
the payment of or on account of the principal of (and premium, if any) or interest on the
Securities of any series or the retention of such payment by the Holder, if, at the time of such
application by the Trustee, it did not have actual knowledge that such payment would have been
prohibited by the provisions of this Article.
SECTION 1406.
Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall
be subrogated to the extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article (equally and ratably with the holders of
all indebtedness of the Company which by its express terms is subordinated to indebtedness of the
Company to substantially the same extent as the Securities are subordinated and is entitled to like
rights of subrogation) to the rights of the holders of such Senior Indebtedness to receive payments
and distributions of cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no payments over pursuant
to the provisions of this Article to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
SECTION 1407.
Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities on the one hand and the holders of Senior
Indebtedness (and, in the case of Section 1415, Entitled Persons in respect of Other Financial
Obligations) on the other hand. Nothing contained in this Article or elsewhere in this Indenture
or in the Securities is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and other than Entitled Persons in respect of Other Financial
Obligations and the Holders of the Securities, the obligation of the Company, which is absolute and
unconditional (and which, subject to the rights under this Article of the holders of Senior
Indebtedness and Entitled Persons in respect of Other Financial Obligations, is intended to rank
equally with all other general obligations of the Company), to pay to the Holders of the Securities
the principal of (and premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the relative rights against
the Company of the Holders of the Securities and creditors of the Company other than the holders of
Senior Indebtedness and Entitled Persons in respect of Other Financial Obligations; or (c) prevent
the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness and under Section 1415 of Entitled Persons in respect of
Other Financial Obligations, to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 1408.
Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
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SECTION 1409.
No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness 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 non-compliance by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Indebtedness (and Entitled Persons in respect of Other Financial Obligations) may, at any time and
from time to time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations hereunder of the Holders
of the Securities to the holders of Senior Indebtedness and Entitled Persons in respect of Other
Financial Obligations, 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, Senior Indebtedness or Other
Financial Obligations, or otherwise amend or supplement in any manner Senior Indebtedness or Other
Financial Obligations or any instrument evidencing the same or any agreement under which Senior
Indebtedness is or Other Financial Obligations are outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness or
Other Financial Obligations; (iii) release any Person liable in any manner for the collection of
Senior Indebtedness or Other Financial Obligations; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
SECTION 1410.
Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect of the Securities.
Failure to give notice shall not affect the subordination of the securities to Senior Indebtedness.
Notwithstanding the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof at the address specified in Section 105 from the
Company or a holder of Senior Indebtedness or from any trustee therefor or from any Entitled
Persons in respect of Other Financial Obligations; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist;
provided
,
however
, that if a Responsible Officer
of the Trustee shall not have received, at least three Business Days prior to the date upon which
by the terms hereof any such money may become payable for any purpose (including, without
limitation, the payment of the principal amount, Redemption Price, purchase price, change in control purchase price or interest, if any, as the case
may be, in respect of any Security), the notice with respect to such money provided for in this
Section 1410, 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 purpose for which
such money was received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee therefor) or an Entitled Person in respect of Other Financial
Obligations to establish that such notice has been given by a holder of Senior Indebtedness (or a
trustee therefor) or an Entitled Person in respect of Other Financial Obligations. In the event
that the Trustee determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness or an Entitled Person in respect of Other
Financial Obligations to participate in any payment or distribution pursuant to this
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Article, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness or Other Financial Obligations
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, 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.
SECTION 1411.
Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee, subject to the provisions of Section 601, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or
similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or distribution, the
holders of Senior Indebtedness and other indebtedness of the Company and the Entitled Persons in
respect of Other Financial Obligations, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1412.
Trustee Not Fiduciary for Holders of Senior Indebtedness or Entitled Persons.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness or Entitled Persons in respect of Other Financial Obligations and shall not be liable
to any such holders or creditors if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash, property or securities to
which any holders of Senior Indebtedness or Entitled Persons in respect of Other Financial
Obligations shall be entitled by virtue of this Article or otherwise.
With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants or obligations as are specifically set forth in this Article and
no implied covenants or obligations with respect to holders of Senior Indebtedness shall be read
into this Indenture against the Trustee.
SECTION 1413.
Rights of Trustee as Holder of Senior Indebtedness or Entitled Person;
Preservation of Trustees Rights.
The Trustee or any Authenticating Agent in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior Indebtedness which may at any time
be held by it and with respect to any Other Financial Obligations owed to the Trustee as an
Entitled Person, to the same extent as any other holder of Senior Indebtedness or Entitled Person
in respect of Other Financial Obligations, as the case may be, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder or Entitled Person.
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 607.
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SECTION 1414.
Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term Trustee as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however, that Section 1413
shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
SECTION 1415.
Securities to Rank Pari Passu with all other Securities.
(a) Subject to the provisions of this Section and to any provisions established or determined
with respect to Securities of any series pursuant to Section 301, the Securities shall rank
pari
passu
in right of payment with all other Securities.
(b) Upon the occurrence of any of the events specified in clauses (a), (b) and (c) of the
first paragraph of Section 1402, the provisions of that Section shall be given effect on a pro rata
basis to determine the amount of cash, property or securities which may be payable or deliverable
as between the holders of Senior Indebtedness, on the one hand, and the Holders of Securities, on
the other hand.
(c) If, after giving effect to the provisions of Section 1402, Section 1406 and the respective
corresponding provisions of each indenture or other instrument or document establishing or
governing the terms of any Senior Indebtedness, any amount of cash, property or securities shall be
available for payment or distribution in respect of the Securities (Excess Proceeds), and any
Entitled Persons in respect of Other Financial Obligations shall not have received payment in full
of all amounts due or to become due on or in respect of such Other Financial Obligations (and
provision shall not have been made for such payment in money or moneys worth), then such Excess
Proceeds shall first be applied (ratably with any amount of cash, property or securities available
for payment or distribution in respect of any other indebtedness of the Company that by its express
terms provides for the payment over of amounts corresponding to Excess Proceeds to Entitled Persons
in respect of Other Financial Obligations) to pay or provide for the payment of the Other Financial
Obligations remaining unpaid, to the extent necessary to pay all Other Financial Obligations in
full, after giving effect to any concurrent payment or distribution to or for Entitled Persons in
respect of Other Financial Obligations. Any Excess Proceeds remaining after the payment (or
provision for payment) in full of all Other Financial Obligations shall be available for payment or
distribution in respect of the Securities.
(d) In the event that, notwithstanding the foregoing provisions of subsection (c) of this
Section, after the occurrence of any of the events specified in clauses (a), (b) and (c) of the
first paragraph of Section 1402, the Trustee or Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character, whether in cash,
property or securities, before all Other Financial Obligations are paid in full or payment thereof
duly provided for, and if such fact shall, at or prior to the time of such payment or distribution,
have been made known to the Trustee or, as the case may be, such Holder, then and in such event,
subject to any obligation that the Trustee or such Holder may have pursuant to Section 1402, such
payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for payment in accordance with subsection (c).
(e) Subject to the payment in full of all Other Financial Obligations, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all indebtedness of the
Company that by its express terms provides for the payment over of amounts corresponding to Excess
Proceeds to Entitled Persons in respect of Other Financial Obligations and is entitled to like
rights of subrogation) to
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the extent of the payments or distributions made to Entitled Persons in respect of Other
Financial Obligations pursuant to subsection (c) or (d) of this Section to the rights of the
Entitled Persons in respect of Other Financial Obligations to receive payments and distributions of
cash, property and securities applicable to the Other Financial Obligations until the principal of
(and premium, if any) and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to Entitled Persons in respect of Other Financial
Obligations of any cash, property or securities to which Holders of the Securities or the Trustee
would be entitled except for the provisions of this Section, and no payments over pursuant to the
provisions of this Section to Entitled Persons in respect of Other Financial Obligations by Holders
of Securities or the Trustee, shall, as among the Company, its creditors other than Entitled
Persons in respect of Other Financial Obligations and the Holders of Securities be deemed to be a
payment or distribution by the Company to or on account of the Other Financial Obligations.
(f) The provisions of subsections (c), (d) and (e) of this Section are and are intended solely
for the purpose of defining the relative rights of the Holders of the Securities, on the one hand,
and the Entitled Persons in respect of Other Financial Obligations, on the other hand, after giving
effect to the rights of the holders of Senior Indebtedness, as provided in this Article. Nothing
contained in subsections (c), (d) and (e) of this Section is intended to or shall affect the
relative rights against the Company of the Holders of the Securities and creditors of the Company
other than Entitled Persons in respect of Other Financial Obligations.
SECTION 1416.
Certain Conversions Deemed Payment.
For purposes of this Article only, (1) the issuance and delivery of junior securities upon
conversion of Securities in accordance with Article Fifteen shall not be deemed to constitute a
payment or distribution on account of the purchase or other acquisition of Securities, and (2) the
payment, issuance or delivery of cash (other than cash payable in lieu of a fractional share as
provided by Section 1504), property or securities (other than junior securities) upon conversion of
a security shall be deemed to constitute payment on account of the principal of such Securities.
For purposes of this Section, the term junior securities means (a) shares of any stock of any
class of the Company and (b) securities of the Company which are subordinated in right of payment
to all Senior Indebtedness and all Other Financial Obligations which may be outstanding at the time
of issuance or delivery of such securities to substantially the same extent as, or to a greater
extent than, the Securities are so subordinated as provided in this Article. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to or shall impair, as
among the Company, its creditors other than holders of Senior Indebtedness and Other Financial
Obligations and the Holders of the Securities, the right, which is absolute and unconditional, of
the Holder of any convertible Security to convert such Security in accordance with Article Fifteen.
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
SECTION 1501.
Applicability of Article.
The Company may elect, at its option at any time, to have Section 1502 applied to any
Securities or any series of Securities, as the case may be, designated pursuant to Section 301 as
being convertible into Common Stock of the Company pursuant to such Section 1502, in accordance
with any applicable requirements provided pursuant to Section 301 and upon compliance with the
conditions set forth below in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for such Securities.
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SECTION 1502.
Conversion Privilege and Conversion Price.
Subject to and upon compliance with the provisions of this Article, at the option of the
Holder thereof, any Security or any portion of the principal amount thereof which is an integral
multiple of the authorized denomination thereof may be converted at the principal amount thereof,
or of such portion thereof, into fully paid and nonassessable shares (calculated as to each
conversion to the nearest 1/100 of a share) of Common Stock of the Company, at the conversion price
for Securities of such series, determined as hereinafter provided, in effect at the time of
conversion. Such conversion right shall commence at the opening of business on the Initial
Conversion Date and expire at the close of business on the Final Conversion Date. In case a
Security or portion thereof is called for redemption, such conversion right in respect of the
Security or portion so called shall expire at the close of business on the Redemption Date, unless
the Company defaults in making the payment due upon redemption.
The price at which shares of Common Stock shall be delivered upon conversion of Securities of
a series (herein called the conversion price for Securities of such series) shall be initially
the Initial Conversion Price for Securities of such series per share of Common Stock. The
conversion price shall be adjusted in certain instances as provided in paragraphs (1), (2), (3) and
(4) of Section 1505.
SECTION 1503.
Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any Security to be converted
shall surrender such Security, duly endorsed or assigned to the Company or in blank, at a Place of
Payment, accompanied by written notice to the Company that the Holder elects to convert such
Security or, if less than the entire principal amount thereof is to be converted, the portion
thereof to be converted. Securities surrendered for conversion during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date shall (except in the case of Securities or portions thereof
which have been called for redemption on a Redemption Date within such period) be accompanied by
payment in funds acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of Securities being surrendered for conversion.
Except as provided in the preceding sentence and subject to the last paragraph of Section 307, no
payment or adjustment shall be made upon any conversion on account of any interest accrued on the
Securities surrendered for conversion or on account of any dividends on the Common Stock issued
upon conversion.
Securities shall be deemed to have been converted immediately prior to the close of business
on the day of surrender of such Securities for conversion in accordance with the foregoing
provisions, and at such time the rights of the Holders of such Securities as Holders shall cease,
and the Person or Persons entitled to receive the Common Stock issuable upon conversion shall be
treated for all purposes as the record holder or holders of such Common Stock at such time. As
promptly as practicable on or after the conversion date, the Company shall issue and shall deliver
at such office or agency a certificate or certificates for the number of full shares of Common
Stock issuable upon conversion, together with payment in lieu of any fraction of a share, as
provided in Section 1504.
In the case of any Security of a series which is converted in part only, upon such conversion
the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Security or Securities of such series of like tenor and in
authorized denominations in aggregate principal amount equal to the unconverted portion of the
principal amount of such Security.
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SECTION 1504.
Fractions of Shares.
No fractional shares of Common Stock shall be issued upon conversion of Securities. If more
than one Security of a series shall be surrendered for conversion at one time by the same Holder,
the number of full shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities of such series (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock which would otherwise be
issuable upon conversion of any Security or Securities (or specified portion thereof), the Company
shall pay a cash adjustment in respect of such fraction in an amount equal (computed to the nearest
cent) to the same fraction of the market price per share of Common Stock (as determined by the
Board of Directors or in any manner prescribed by the Board of Directors) at the close of business
on the day of conversion.
SECTION 1505.
Adjustment of Conversion Price.
(1) In case at any time after the date of establishment of the Initial Conversion Price with
respect to Securities of a series the Company shall pay or make a dividend or other distribution in
shares of Common Stock on any class of capital stock of the Company, the conversion price in effect
at the opening of business on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution shall be reduced by
multiplying such conversion price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph, the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company. The Company will
not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the
Company.
(2) In case at any time after the date of establishment of the Initial Conversion Price with
respect to Securities of a series the Company shall issue rights or warrants to all holders of its
Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per
share less than the current market price per share (determined as provided in paragraph (6) of this
Section) of the Common Stock on the date fixed for the determination of stockholders entitled to
receive such rights or warrants, the conversion price in effect at the opening of business on the
day following the date fixed for such determination shall be reduced by multiplying such conversion
price by a fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination plus the number of
shares of Common Stock which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such current market price
and the denominator shall be the number of shares of Common Stock outstanding at the close of
business on the dated fixed for such determination plus the number of shares of Common Stock so
offered for subscription or purchase, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such determination. For the purposes
of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company. The Company will not issue any rights or
warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case at any time after the date of establishment of the Initial Conversion Price with
respect to Securities of a series outstanding shares of Common Stock shall be subdivided into a
greater number of shares of Common Stock, the conversion price in effect at the opening of business
on the day following the day upon which such subdivision becomes effective shall be proportionately
reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, the conversion price in effect at the opening of business
on the day following
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the day upon which such combination becomes effective shall be proportionately increased, such
reduction or increase, as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case at any time after the date of establishment of the Initial Conversion Price with
respect to Securities of a series the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in paragraph (2) of this Section, any dividend or
distribution paid in cash and any dividend or distribution referred to in paragraph (1) of this
Section), the conversion price shall be adjusted so that the same shall equal the price determined
by multiplying the conversion price in effect immediately prior to the close of business on the
date fixed for the determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the current market price per share (determined as provided
in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less
the then fair market value (as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee) of the portion of assets or
evidences of indebtedness so distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common Stock, such adjustment to
become effective immediately prior to the opening of business on the day following the date fixed
for the determination of stockholders entitled to receive such distribution.
(5) The reclassification of Common Stock into securities other than Common Stock (other than
any reclassification upon a consolidation or merger to which Section 1512 applies) shall be deemed
to involve (a) a distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be the date fixed for
the determination of stockholders entitled to receive such distribution and the date fixed for
such determination within the meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock outstanding immediately
thereafter (and the effective date of such reclassification shall be deemed to be the day upon
which such subdivision becomes effective or the day upon which such combination becomes
effective, as the case may be, and the day upon which such subdivision or combination becomes
effective within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the
current market price per share of Common Stock on any date shall be deemed to be the average of the
daily closing prices for five consecutive Trading Days selected by the Company commencing not more
than 20 Trading days before, and ending not later than, the earlier of the day in question and the
day before the ex date with respect to the issuance or distribution requiring such computation.
The closing price for each day shall be the last reported sales price regular way (without giving
effect to extended or after hours trading) or, in case no such reported sale takes place on such
day, the average of the reported closing bid and asked prices regular way, in either case on the
New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such
Exchange, on the principal national securities exchange on which the Common Stock is listed or
admitted to trading or, if the Common Stock is not listed or admitted to trading on any national
securities exchange or, the average of the closing bid and asked prices in the over-the-counter
market as furnished by any New York Stock Exchange member firm selected from time to time by the
Company for that purpose. For the purposes of this paragraph (6) the term Trading Day shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which the Common Stock
does not trade regular way on such exchange or in such market, and the term ex date, when used
with respect to any issuance or distribution, shall mean the first date on which the Common Stock
trades regular way on such exchange or in such market without the right to receive such issuance or
distribution.
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(7) No adjustment in the conversion price shall be required unless such adjustment would
require an increase or decrease of at least 1% in such price; provided, however, that any
adjustment which by reason of this paragraph (7) is not required to be made shall be carried
forward and taken into account in any subsequent adjustment; and all calculations under this
paragraph (7) shall be made to the nearest cent.
(8) The Company may make such reductions in the conversion price, in addition to those
required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in
order that any event treated for Federal income tax purposes as a dividend of stock or stock rights
shall not be taxable to the recipients.
SECTION 1506.
Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price in accordance with Section 1505
and shall prepare a certificate signed by the Treasurer of the Company setting forth the adjusted
conversion price and showing in reasonable detail the facts upon which such adjustment is based,
and such certificate shall forthwith be filed at each Place of Payment; and
(b) a notice stating that the conversion price has been adjusted and setting forth the
adjusted conversion price shall forthwith be required, and as soon as practicable after it is
required, such notice shall be mailed by the Company to all Holders at their respective last
addresses as they shall appear in the Security Register.
SECTION 1507.
Notice of Certain Corporate Action.
In case at any time on or after the Initial Conversion Date:
(a) the Company shall declare a dividend (or any other distribution) on its Common Stock
payable otherwise than in cash;
(b) the Company shall authorize the granting to the holders of its Common Stock of rights or
warrants to subscribe for or purchase any shares of capital stock of any class or of any other
rights;
(c) of any reclassification of the Common Stock of the Company (other than a subdivision or
combination of its outstanding shares of Common Stock), or of any consolidation or merger to which
the Company is a party and for which approval of any stockholders of the Company is required, or of
the sale or transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company;
then the Company shall cause to be filed at each Place of Payment, and shall cause to be mailed to
all Holders at their respective last addresses as they shall appear in the Security Register, at
least 20 days (or 10 days in any case specified in Clause (a) or (b) above) prior to the applicable
record or effective date hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of such dividend, distribution, rights or warrants, or, if a record is
not to be taken, the date as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common
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Stock for securities, cash or other property deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.
SECTION 1508.
Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from pre-emptive rights, out
of its authorized but unissued Common Stock, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock then issuable upon the conversion of all
outstanding Securities.
SECTION 1509.
Taxes on Conversions.
The Company will pay any and all taxes that may be payable in respect of the issue or delivery
of shares of Common Stock on conversion of Securities pursuant hereto. The Company shall not,
however, be required to pay any tax which may be payable in respect of any transfer involved in the
issue and delivery of shares of Common Stock in a name other than that of the Holder of the
Security or Securities to be converted, and no such issue or delivery shall be made unless and
until the Person requesting such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
SECTION 1510.
Covenant as to Common Stock.
The Company covenants that all shares of Common Stock which may be issued upon conversion of
Securities will upon issue be fully paid and nonassessable and, except as provided in Section 1509,
the Company will pay all taxes with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be provided for the purpose of
conversion of Securities hereunder require registration with or approval of any governmental
authority under any Federal or State law before such shares may be validly delivered upon
conversion, the Company will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be.
SECTION 1511.
Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the Trustee to be cancelled by
or at the direction of the Trustee, which shall dispose of the same as provided in Section 309.
SECTION 1512.
Provisions in Case of Consolidation, Merger or Sale of Assets.
In case of any consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger which does not result in
any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of
the Company) or any sale or transfer of all or substantially all of the assets of the Company, the
Person formed by such consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and deliver to the Trustee a supplemental indenture providing that
the Holder of each Security then outstanding shall have the right thereafter, during the period
such Security shall be convertible as specified in Section 1502, to convert such Security only into
the kind and amount of securities, cash and other property receivable upon such consolidation,
merger, sale or transfer by a holder of the number of shares of Common Stock of the Company into
which such Security might have been converted immediately prior to such consolidation, merger, sale
or transfer, assuming such holder of Common Stock of the Company (i) is not a Person with which the
Company consolidated or into which the Company merged or which merged into the Company or to which
such sale or transfer was made, as
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the case may be (constituent Person), or an Affiliate of a constituent Person and (ii)
failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer (provided that if the
kind or amount of securities, cash and other property receivable upon such consolidation, merger,
sale or transfer is not the same for each share of Common Stock of the Company held immediately
prior to such consolidation, merger, sale or transfer by others than a constituent Person or an
Affiliate thereof and in respect of which such rights of election shall not have been exercised
(non-electing share), then for the purpose of this Section the kind and amount of securities,
cash and other property receivable upon such consolidation, merger, sale or transfer by each
non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality
of the non-electing shares), and assuming, if such consolidation, merger, sale or transfer is prior
to the Initial Conversion Date, that the Securities were convertible at the time of such
consolidation, merger, sale or transfer at the Initial Conversion Price specified in Section 1502
as adjusted from the date of establishment of the Initial Conversion Price with respect to
Securities of a series to such time pursuant to paragraphs (1), (2), (3) and (4) of Section 1505.
Such supplemental indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Article. The above provisions of this Section shall
similarly apply to successive consolidations, mergers, sales or transfers.
SECTION 1513.
Responsibility of Trustee.
The Trustee shall not at any time be under any duty or responsibility to any Holder of a
Security to make or cause to be made any adjustment of the conversion price, or to determine
whether any facts exist which may require any such adjustment, or with respect to the nature or
extent of any such adjustment when made, or with respect to any method employed, herein or in any
supplemental indenture provided to be employed, in making the same. The Trustee shall not be
accountable with respect to the validity or value (or the kind or amount) of any shares of Common
Stock or of any securities or property which may at any time be issued or delivered upon conversion
of any Security; and the Trustee makes no representation with respect thereto. The Trustee shall
not be responsible for any failure of the Company to issue, transfer or deliver any shares of
Common Stock or stock certificates or other securities or property upon surrender of any Security
for the purpose of conversion or to comply with any of the covenants of the Company contained in
this Article Fifteen. The Trustee shall not be responsible for the Companys failure to comply
with this Article Fifteen. Each Conversion Agent (other than the Company or an Affiliate of the
Company) shall have the same protection under this Section 1513 as the Trustee.
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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FIRST HORIZON NATIONAL CORPORATION
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By
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Attest:
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THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Trustee
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By
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