EXHIBIT 1.1
REGIONS FINANCIAL CORPORATION
(a Delaware corporation)
$400,000,000
Floating Rate Senior Notes due 2008
$350,000,000
4.5% Senior Notes due 2008
UNDERWRITING AGREEMENT
New York, New York
August 3, 2005
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Regions Financial Corporation, a Delaware corporation (the “Company”), proposes, upon the
terms and conditions set forth in this underwriting agreement (this “Agreement”), to issue and sell
$400,000,000 aggregate principal amount of its Floating Rate Senior Notes due 2008 (the “Floating
Rate Notes”) and $350,000,000 aggregate principal amount of its 4.5% Senior Notes due 2008 (the
“Fixed Rate Notes” and, together with the Floating Rate Notes, the “Securities”) to Morgan Keegan &
Company, Inc. and Morgan Stanley & Co. Incorporated and the other Underwriters set forth on
Schedule I attached hereto (collectively, the “Underwriters”), for whom you (the “Representatives”)
are acting as representatives.
The Securities issued in book-entry form will be issued to Cede & Co., as nominee of The
Depository Trust Company (“DTC”), pursuant to a letter agreement, to be dated as of the Closing
Date (as defined herein) (the “DTC Agreement”), between the Company and DTC.
The Securities will be issued pursuant to an indenture, dated as of August 8, 2005 (the
“Original Indenture”), as supplemented by the Supplemental Indenture, dated as of August 8, 2005
(the “Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), in each
case, between the Company and Deutsche Bank Trust Company Americas, as trustee (the “Indenture
Trustee”).
The Indenture, the DTC Agreement and this Agreement are collectively referred to as the
“Operative Agreements.”
The Company and certain trusts sponsored by the Company have filed with the Securities and
Exchange Commission (the “Commission”) a joint registration statement on Form S-3 (No. 333-124337)
and pre-effective amendment no. 1 thereto (the “Prior Registration Statement”) for the registration
of the Securities and certain other securities described therein under the Securities Act of 1933,
as amended (the “1933 Act”), and the offering thereof from time to time in accordance with Rule 415
of the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”).
The Prior Registration Statement was declared effective by the Commission on May 18, 2005. The
Company and certain trusts sponsored by the Company have also filed with the Commission a joint
registration statement on Form S-3 (No. 333-126797) for the registration of the Securities and
certain other securities described therein under the 1933 Act and the offering thereof from time to
time in accordance with Rule 415. Pursuant to Rule 429(b) of the 1933 Act Regulations, such
Registration Statement also constituted post-effective amendment no. 1 to the Prior Registration
Statement. Such Registration Statement has been declared effective by the Commission and the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the “1939
Act”).
To the extent there are no additional Underwriters listed on Schedule I other than you, the
term Representatives as used herein shall mean you, as Underwriters, and the terms Representatives
and Underwriters shall mean either the singular or plural as the context requires. Any reference
herein to the Registration Statement, the Preliminary Prospectus, the Basic Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the “1934 Act”), and the rules and regulations of the Commission under the 1934 Act (the
“1934 Act Regulations”) on or before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, the Preliminary Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Basic Prospectus, the Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the 1934 Act or the 1934
Act Regulations after the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, the Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to
be incorporated therein by reference. Certain terms used herein are defined in Section 17 hereof.
For purposes of this Agreement, all references to the Registration Statement, the Basic
Prospectus, the Preliminary Prospectus or the Final Prospectus or to any amendment or supplement to
any of the foregoing shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
1.
Representations and Warranties.
The Company represents and warrants to, and agrees
with, each Underwriter as of the date hereof and as of the Closing Date (in each case, a
“Representation Date”), as set forth below.
(a) The Company meets the requirements for use of Form S-3 under the 1933 Act and has
prepared and filed with the Commission a registration statement (the file number of which is
set forth in Schedule I hereto) on Form S-3, including a related basic prospectus, for
registration under the 1933 Act of the offering and sale of the Securities
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and certain other
securities. The Company shall file with the Commission the Preliminary Prospectus and the
Final Prospectus in accordance with Rule 424(b). As filed, such Final Prospectus shall
contain all Rule 430A Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did, and the Preliminary
Prospectus, when it is filed in accordance with Rule 424(b), will, and when the Final
Prospectus is first filed (if required) in accordance with Rule 424(b) and on the Closing
Date, the Final Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the 1933 Act, the 1933 Act Regulations, the
1934 Act, the 1934 Regulations and the 1939 Act and the rules and regulations thereunder; on
the Effective Date and at the Execution Time, the Registration Statement did not or will not
include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not misleading; on
the Effective Date and on the Closing Date, the Indenture did or will comply in all material
respects with the applicable requirements of the 1939 Act and the rules thereunder; and, on
the Effective Date, the Final Prospectus, if not filed pursuant to Rule 424(b), will not,
and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
, that the Company makes no representations or warranties
as to (i) those parts of the Registration Statement which shall constitute Statements of
Eligibility and Qualification on Form T-1 (the “Form T-1s”) under the 1939 Act or (ii) the
information contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
(c) The Company and each of its Significant Subsidiaries has been duly incorporated and
is validly existing as a corporation or a bank, as applicable, in good standing under the
laws of the jurisdiction in which it is chartered or organized with full corporate power and
authority to own or lease, as the case may be, and to operate its properties and conduct its
business as described in the Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction which
requires such qualification.
(d) The Company is duly registered as a bank holding company and a financial holding
company under the Bank Holding Company Act of 1956, as amended (the “BHC Act”).
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(e) Regions Bank is a duly organized and validly existing Alabama state chartered bank
and continues to hold a valid certificate to do business as such.
(f) Since the date of the most recent financial statements included or incorporated by
reference in the Final Prospectus, there has been no material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its Significant Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or contemplated by
the Final Prospectus (a “Material Adverse Effect”).
(g) The outstanding shares of capital stock of the Company are as set forth in the
Final Prospectus in the column entitled “Actual” under the caption “Capitalization” (except
for subsequent issuances thereof, if any, pursuant to reservations, agreements or employee
benefit plans or pursuant to the exercise of convertible securities
or options). Such shares of capital stock have been duly authorized and validly issued by the Company and are
fully paid and non-assessable, and none of such shares of capital stock was issued in
violation of preemptive or other similar rights of any securityholder or the Company.
(h) All the outstanding shares of capital stock of each subsidiary of the Company have
been duly and validly authorized and issued and are fully paid and nonassessable (except as
provided in statutes pursuant to which depository institution subsidiaries are subject),
and, except as otherwise set forth in the Final Prospectus, a controlling majority of the
outstanding shares of voting capital stock of the Significant Subsidiaries are owned by the
Company, either directly or through wholly owned subsidiaries, free and clear of any
perfected security interest or any other security interests, claims, liens or encumbrances.
(i) The Indenture has been duly authorized, and, at the Closing Date will have been
duly executed and delivered by the Company and, assuming due authorization, execution and
delivery by the Indenture Trustee, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at law).
(j) The Securities have been duly authorized by the Company for issuance as
contemplated by this Agreement. The Securities, when issued and authenticated in the manner
provided for in the Indenture and delivered against payment of the consideration therefor in
accordance with the terms of this Agreement, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights generally or
by general equitable principles (regardless of whether enforcement is considered in a
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proceeding in equity or at law). The Securities will be in the form contemplated by, and
each registered holder thereof will be entitled to the benefits of, the Indenture.
(k) The Securities and the Operative Agreements, as of each Representation Date, will
conform in all material respects to the statements relating thereto included in the Final
Prospectus and, to the extent applicable, will be in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the Registration Statement.
(l) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Final Prospectus,
will not be, an “investment company” as defined in the Investment Company Act of 1940, as
amended (the “1940 Act”).
(m) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions contemplated
herein, except such as have been obtained under the 1933 Act and the 1939 Act and such as
may be required under the blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters in the manner contemplated herein and
in the Final Prospectus.
(n) Neither the issue and sale of the Securities nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms hereof will conflict
with, result in a breach or violation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its Significant Subsidiaries pursuant to,
(i) the charter or by-laws of the Company or any of its Significant Subsidiaries, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to which the
Company or any of its Significant Subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its Significant Subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its Significant Subsidiaries or any of its or their
properties which violation or default would, in the case of clauses (ii) and (iii) above,
either individually or in the aggregate with all other violations and defaults referred to
in this paragraph (n), reasonably be expected to result in a Material Adverse Effect.
(o) The consolidated historical financial statements and schedules of the Company and
its consolidated subsidiaries included in the Final Prospectus and the Registration
Statement present fairly in all material respects the financial condition, results of
operations and cash flows of the Company and its consolidated subsidiaries as of the dates
and for the periods indicated, comply as to form with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations and have been
prepared in conformity with United States generally accepted accounting principles applied
on a consistent basis throughout the periods involved (except as otherwise noted therein).
The selected financial data set forth under the caption “Selected Historical
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Financial Data” in the Final Prospectus fairly present, on the basis stated in the Final Prospectus, the
information included therein.
(p) Ernst & Young LLP, who have certified certain financial statements of the Company
and its consolidated subsidiaries and delivered their report with respect to the audited
consolidated financial statements and schedules included in the Final Prospectus, is an
independent registered public accounting firm with respect to the Company within the meaning
of the 1933 Act and the 1933 Act Regulations.
(q) Except as disclosed in the Final Prospectus, no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the
Company or any of its Significant Subsidiaries or its or their property is pending or, to
the best knowledge of the Company, threatened that (i) would reasonably be expected to have
a material adverse effect on the performance of this Agreement or the consummation of any of
the transactions contemplated hereby or (ii) would reasonably be expected to result in a
Material Adverse Effect.
(r) Neither the Company nor any subsidiary is in violation or default of (i) any
provision of its charter or by-laws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to which its property
is subject or (iii) any statute, law, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary or any of its properties,
as applicable, which violation or default would, in the case of clauses (ii) and (iii)
above, either individually or in the aggregate with all other violations and defaults
referred to in this paragraph (r), reasonably be expected to result in a Material Adverse
Effect.
(s) The Company has filed all foreign, federal, state and local tax returns that are
required to be filed or has requested extensions thereof (except in any case in which the
failure so to file would not reasonably be expected to have a Material Adverse Effect) and
has paid all taxes required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and payable, except for
any such assessment, fine or penalty that is currently being contested in good faith or as
would not reasonably be expected to result in a Material Adverse Effect.
(t) The Company and each of its Significant Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; all policies of insurance
and fidelity or surety bonds insuring the Company or any of its Significant Subsidiaries or
their respective businesses, assets, employees, officers and directors are in full force and
effect; the Company and its Significant Subsidiaries are in compliance with the terms of
such policies and instruments in all material respects; and
there are no claims by the Company or any of its Significant Subsidiaries under any
such policy or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; neither the Company nor any such subsidiary
has been refused any insurance coverage sought or applied for; and neither the Company nor
6
any such subsidiary has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not
reasonably be expected to result in a Material Adverse Effect.
(u) No subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary’s property or assets to the Company
or any other subsidiary of the Company, except as described in or contemplated by the Final
Prospectus and applicable banking laws and regulations.
(v) The Company and its Significant Subsidiaries possess all licenses, certificates,
permits and other authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, and neither the
Company nor any such subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding, would
reasonably be expected to result in a Material Adverse Effect.
(w) The Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15 and 15d-15 under the 1934 Act) that (A) are designed to
ensure that material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s Chief Executive Officer and its Chief Financial
Officer by others within those entities, particularly during the periods in which the
filings made by the Company with the Commission which it may make under Sections 13(a),
13(c) or 15(d) of the 1934 Act are being prepared, (B) have been evaluated for effectiveness
as of the Company’s most recent fiscal quarter and (C) are effective to perform the
functions for which they were established.
The Company has established and maintains internal control over financial reporting (as
such term is defined in Rule 13a-15 and 15d-15 under the 1934 Act) that (a) provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting
principles and (b) have been evaluated by the management of the Company (including the
Company’s Chief Executive Officer and Chief Financial Officer) for effectiveness as of the
end of the Company’s most recent fiscal year. The management of the Company (including the
Company’s Chief Executive Officer and Chief Financial Officer) has evaluated any change that
has materially affected, or is reasonably likely to affect, the Company’s internal control
over financial reporting as of the end of the Company’s most recent fiscal quarter. In
addition, not later than the date of the filing with the Commission of the Company’s most
recent Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, each of the accountants and the
audit committee of the board of directors of the Company have been advised of (A) all
significant deficiencies and material weaknesses in the design or operation of internal
control over financial reporting which are reasonably likely to adversely affect the
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Company’s ability to record, process, summarize and report financial information and (B) any
fraud, whether or not material, that involves management or other employees who have a
significant role in Company’s internal control over financial reporting.
(x) The Company has not taken, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the 1934
Act, the 1934 Act Regulations or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Securities.
(y) The Company and its Significant Subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to the protection
of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”), (ii) have received and are in compliance
with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not received notice
of any actual or potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants, except where
such non-compliance with Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. Except as set forth in the Final
Prospectus, neither the Company nor any of the Significant Subsidiaries has been named as a
“potentially responsible party” under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(z) Except as disclosed in the Registration Statement and the Final Prospectus, the
Company (i) does not have any material lending or other relationship with any bank or
lending affiliate of any of the Underwriters and (ii) does not intend to use any of the
proceeds from the sale of the Securities hereunder to repay any outstanding debt owed to any
affiliate of any of the Underwriters.
(aa) The relationship between the Company and each Underwriter is an arms-length
commercial relationship and no fiduciary duty or any other obligation arising out of a
relationship of higher trust exists between the Company and any of the Underwriters.
(bb) The Company and each of its subsidiaries are in compliance with all laws
administered by the Board of Governors of the Federal Reserve System (the “Federal Reserve
Board”), the Federal Deposit Insurance Corporation (“FDIC”), the Alabama Department of
Banking (the “Department”) and any other federal or state bank regulatory authorities
(together with the Federal Reserve Board, the FDIC and the Department, the “Bank Regulatory
Authorities”) with jurisdiction over the Company and its subsidiaries, except for such
failures to be in compliance as would not reasonably be expected to result in a Material
Adverse Effect. The deposit accounts of each bank subsidiary of the
Company are insured up to applicable limits by the FDIC and no proceedings for the
termination or revocation of such insurance are pending or, to the knowledge of the Company,
threatened. Neither the Company nor any of its subsidiaries is a party to or otherwise
subject to any consent decree, memorandum of understanding, written
8
commitment or other
supervisory agreement with any of the Bank Regulatory Authorities or any other governmental
agency or authority, nor have the Company or any of its subsidiaries been advised by any of
the Bank Regulatory Authorities or any other governmental agency or authority that it is
contemplating issuing or requesting any of the foregoing.
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale.
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the
purchase prices set forth in Schedule I hereto the respective aggregate principal amounts of the
Floating Rate Notes and the Fixed Rate Notes set forth opposite such Underwriter’s name in Schedule
II hereto.
3.
Delivery and Payment
.
(a)
Delivery
. Delivery of and payment for the Securities shall be made on the date
which is three Business Days after the Execution Date, which date and time may be postponed
by agreement among the Representatives and the Company or as provided in Section 9 hereof
(such date and time of delivery and payment for the Securities being herein called the
“Closing Date”). Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several Underwriters
through Morgan Stanley & Co. Incorporated of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to an account specified by the
Company. Morgan Stanley & Co. Incorporated, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase price for the
Securities to be purchased by any Underwriter whose funds have not been received by the
Closing Date, but such payment shall not relieve such Underwriter from its obligations
hereunder. Delivery of the Securities shall be made through the facilities of DTC unless
the Representatives shall otherwise instruct. Delivery of the Securities shall be made at
such location as Morgan Stanley & Co. Incorporated shall reasonably designate at least one
Business Day in advance of the Closing Date. Certificates for the Securities shall be
registered in such names and in such denominations as Morgan Stanley & Co. Incorporated may
request not less than two Business Days in advance of the Closing Date. The Company agrees
to have the Securities available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM on the Business Day prior to
the Closing Date.
(b)
Payment.
Payment of the purchase price for, and delivery of, the Securities shall
be made at the offices of Sidley Austin Brown & Wood
llp
, 787 Seventh Avenue, New
York, New York, or at such other place as shall be agreed upon by the Underwriters and the
Company, at 9:00 A.M. (Eastern time) on the Closing Date.
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4.
Offering by Underwriters.
It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Final Prospectus.
5.
Agreements.
The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under Rule 424(b), the Company
will cause the Final Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives (1) when the Final
Prospectus, and any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (2) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been filed or become
effective, (3) of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to
the Final Prospectus or for any additional information, (4) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or
the use of the Preliminary Prospectus or the Final Prospectus, or the institution or
threatening of any proceeding for that purpose and (5) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the institution or threatening of any proceeding for such purpose.
The Company will use its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is required to be
delivered under the 1933 Act, any event occurs as a result of which the Final Prospectus as
then supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Final Prospectus to comply with the 1933 Act, the
1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, the Company promptly will
(1) notify the Representatives of such event, (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect
such compliance and (3) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(c) The Company will use the net proceeds received by them from the sale of the
Securities in the manner specified in the Final Prospectus under “Use of Proceeds.”
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(d) The Company, during the period when a prospectus relating to the Securities is
required to be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act and the 1934 Act
Regulations within the time periods required thereby.
(e) As soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the Company and
its Significant Subsidiaries which will satisfy the provisions of Section 11(a) of the 1933
Act and Rule 158 under the 1933 Act Regulations.
(f) The Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits thereto) and
to each other Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the
1933 Act, as many copies of the Final Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering. The Company hereby consents to
the use of copies of the Preliminary Prospectus previously delivered to the Underwriters by
the Company for purposes permitted by the 1933 Act.
(g) The Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required for the distribution of the
Securities and will pay any fee of the National Association of Securities Dealers, Inc.
(“NASD”) and the reasonable fees and expenses of counsel for the Underwriters in connection
with its review of the offering; provided, that in no event shall the Company be obligated
to qualify to do business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where it is not now so
subject.
(h) The Company will not, without the prior written consent of Morgan Stanley & Co.
Incorporated, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into
any transaction which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or indirectly, including
the filing (or participation in the filing) of a registration statement with the Commission
in respect of, or establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the
1934 Act, any debt securities issued by the Company (other than the Securities) or
publicly announce an intention to effect any such transaction, until the Business Day set
forth on Schedule I hereto.
(i) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under
11
the 1934
Act or otherwise, stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
6.
Conditions to the Obligations of the Underwriters.
The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of their respective obligations hereunder and
to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time,
unless the Representatives agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 PM New York City time, on the date of determination
of the public offering price, if such determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 9:30 AM on the Business Day following the day on which the
public offering price was determined, if such determination occurred after 3:00 PM New York
City time on such date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be
filed in the manner and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Alston & Bird LLP, counsel for the
Company, to have furnished to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) The Company is validly existing as a corporation in good standing under the
laws of Delaware, with full corporate power and authority to own or lease, as the
case may be, and to operate its properties and conduct its business as described in
the Final Prospectus.
(ii) The Company is duly registered as a bank holding company and a financial
holding company under the BHC Act.
(iii) This Agreement has been duly authorized, executed and delivered by the
Company.
(iv) The Indenture has been duly authorized, executed and delivered by the
Company, and constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors’ rights generally from time to time in effect
and to general principles of equity or law, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law).
12
(v) The Securities have been duly authorized, executed and delivered by the
Company for issuance and, when authenticated by the Indenture Trustee in the manner
provided for in the Indenture and delivered against payment for the consideration
therefor in accordance with the terms of this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law). The Securities are in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the Indenture.
(vi) The Securities and the Operative Agreements conform in all material
respects to the statements relating thereto contained in the Final Prospectus and,
to the extent applicable, are in substantially the form filed or incorporated by
reference, as the case may be, as exhibits to the Registration Statement, with the
exception of the Supplemental Indenture, which has not been incorporated by
reference or filed as an exhibit thereto.
(vii) The statements in the Registration Statement and the Final Prospectus,
insofar as they are descriptions of contracts, agreements, instruments or the
Company’s Certificate of Incorporation or legal proceedings, or constitute
statements or summaries of United States federal, New York State laws or the General
Corporation Law of the State of Delaware or legal conclusions with respect thereto,
are accurate and present fairly the information required to be shown in all material
respects.
(viii) The Registration Statement and the Final Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Final Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than the
financial statements and supporting schedules and other financial data included
therein or omitted therefrom and each Form T-1, as to which such counsel express no
opinion) complied as to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations.
(ix) The documents incorporated by reference in the Final Prospectus (other
than the financial statements and supporting schedules and other financial data
included therein or omitted therefrom, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission, as the case
may be, complied as to form in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations, as applicable.
(x) The Registration Statement has become effective under the 1933 Act; any
required filing of the Basic Prospectus, and the Final Prospectus, and any
13
supplements thereto, pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than the financial statements
and other financial information contained therein and in each Form T-1, as to which
such counsel need express no opinion) comply as to form in all material respects
with the applicable requirements of the 1933 Act, the 1933 Act Regulations, the 1934
Act, the 1934 Act Regulations and the 1939 Act and the rules and regulations of the
Commission thereunder and such counsel has no reason to believe that on the
Effective Date or the date the Registration Statement was last deemed amended, the
Registration Statement included any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus as of its date and on
the Closing Date included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading (in
each case, other than the financial statements and other financial information
contained therein and each Form T-1, as to which such counsel need express no
opinion).
(xi) The Indenture has been duly qualified under the 1939 Act.
(xii) The statements included in the Final Prospectus under the heading
“Certain United States Federal Income Tax Consequences,” insofar as such statements
summarize legal matters, are accurate and fair summaries of such legal matters in
all material respects.
(xiii) The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the Final
Prospectus, will not be, an “investment company” as defined in the 1940 Act.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of New York, the Federal laws
of the United States or the General Corporation Law of the State of Delaware, to the extent
they deem proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Company shall have requested and caused R. Alan Deer, Executive Vice President,
General Counsel and Corporate Secretary of the Company, to have furnished to the
Representatives his opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
14
(i) Regions Bank is validly existing as a bank in good standing under the laws
of Alabama, with full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in the Final
Prospectus. The Company is duly qualified to do business as a foreign corporation
and is in good standing under the laws of the State of Alabama.
(ii) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained under the 1933 Act and such
as may be required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and such other approvals
(specified in such opinion) as have been obtained.
(iii) Neither the execution and delivery of the Indenture, the issue and sale
of the Securities, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict with, result in a
breach or violation of or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its Significant Subsidiaries pursuant to, (A)
the charter or by-laws of the Company or its Significant Subsidiaries, (B) the terms
of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to which
the Company or its Significant Subsidiaries is a party or bound or to which its or
their property is subject, or (C) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or its Significant Subsidiaries of any
court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or its Significant Subsidiaries
or any of its or their properties, which violation or default would, in the case of
clauses (B) and (C) above, either individually or in the aggregate with all other
violations and defaults referred to in this paragraph (iii) (if any), reasonably be
expected to result in a Material Adverse Effect.
(iv) To the knowledge of such counsel, there is no pending or threatened
action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its Significant
Subsidiaries or their respective property, of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required; and the statements incorporated by reference in the Final
Prospectus from Item 3 of the Company’s most recent Annual Report on Form 10-K
insofar as such statements summarize legal matters, agreements, documents or
15
proceedings discussed therein, are accurate and fair summaries of such legal
matters, agreements, documents or proceedings.
(d) The Representatives shall have received from Sidley Austin Brown & Wood
llp
, counsel for the Underwriters, such opinion or opinions, dated the Closing Date
and addressed to the Representatives, with respect to the issuance and sale of the
Securities, the Operative Agreements, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received from Seward & Kissel LLP, counsel for the
Indenture Trustee, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to such matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate signed by the
Chief Executive Officer or Vice Chairman and the principal financial or accounting officer
of the Company, dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final Prospectus, any supplements to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or, to the
Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or
incorporated by reference in the Final Prospectus (exclusive of any supplement
thereto), there has been no Material Adverse Effect.
(g) The Company shall have requested and caused Ernst & Young LLP to have furnished to
the Representatives, at the Execution Time and at the Closing Date, letters, (which may
refer to letters previously delivered to one or more of the Representatives), dated
respectively as of the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus, there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the condition (financial or
16
otherwise), earnings, business or properties of the Company and its Significant
Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Final Prospectus the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement and the Final Prospectus.
(i) At the Closing Date, the Floating Rate Notes and the Fixed Rate Notes shall each be
rated in one of the four highest rating categories for long-term debt (“Investment Grade”)
by Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and by Moody’s
Investors Service, and the Company shall have delivered to the Underwriters a letter, dated
as of the Closing Date, or within three Business Days thereafter, from each such rating
organization, or other evidence satisfactory to the Underwriters, confirming that the
Floating Rate Notes and the Fixed Rate Notes have such ratings. Since the time of execution
of this Agreement, there shall not have occurred a downgrading in, or withdrawal of, the
rating assigned to the Floating Rate Notes or the Fixed Rate Notes or any of the Company’s
securities or financial strength by any such rating organization or any other “nationally
recognized statistical rating organization,” as defined for purposes of Rule 436(g)(2) under
the 1933 Act Regulations, and no such rating organization shall have publicly announced that
it has under surveillance or review with negative implications its rating of the Floating
Rate Notes or the Fixed Rate Notes or any of the Company’s securities or financial strength.
(j) The NASD shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting terms and arrangements.
(k) Prior to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 6 shall not have been fulfilled in
all material respects when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may
be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or facsimile
confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Sidley Austin Brown & Wood
llp
, counsel for the Underwriters, at 787 Seventh Avenue, New
York, New York 10019, on the Closing Date.
7.
Reimbursement of Underwriters’ Expenses.
If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant to
17
Section 10
hereof or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through Morgan Stanley &
Co. Incorporated on demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8.
Indemnification and Contribution
.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the 1933 Act or the 1934 Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any of them may
become subject under the 1933 Act, the 1934 Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any amendment
thereof, or in the Basic Prospectus, the Preliminary Prospectus or the Final Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage, liability
or action;
provided
,
however
, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representatives specifically
for inclusion therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, each of its respective directors, each of its respective officers who signs the
Registration Statement, and each person who controls the Company within the meaning of
either the 1933 Act or the 1934 Act, to the same extent as the foregoing indemnity in
paragraph (a) above from the Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The Company
and the Underwriters acknowledge that the statements set forth in the last paragraph of the
cover page regarding delivery of the Securities and, under the heading “Underwriting,” (i)
the list of Underwriters and their respective participation in the sale of the Securities,
(ii) the sentences related to concessions and reallowances and (iii) the paragraphs related
to stabilization, syndicate covering transactions and penalty bids in the Final Prospectus
constitute the only information furnished in writing by or on behalf of
18
the several
Underwriters for inclusion in the Final Prospectus and, as applicable, in the Preliminary
Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice
at the indemnifying party’s expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below);
provided
,
however
, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such claim, action, suit
or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively “Losses”) to which the Company and one
or more of the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and by the Underwriters on the
other from the offering of the Securities;
19
provided
,
however
, that in no
case shall any Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting expenses) received
by it, and benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions (before deducting expenses), in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the 1933 Act or the 1934 Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the Company within the meaning of either the
1933 Act or the 1934 Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this paragraph (d).
9.
Default by an Underwriter.
If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the number of Securities set forth
opposite their names in Schedule II hereto bears to the number of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that
in the event that the number of Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the number of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the
20
Closing Date shall be postponed for such period, not exceeding five Business Days,
as the Representatives shall determine in order that the required changes in the Registration
Statement and the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10.
Termination.
This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such time (i) trading in the Company’s Securities shall
have been suspended by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange or the Nasdaq National Market shall have been suspended or
limited or minimum prices shall have been established on such exchange or the Nasdaq National
Market, (ii) a banking moratorium shall have been declared either by Federal, New York State or
Alabama authorities or (iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Prospectus (exclusive of any supplement thereto).
11.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its respective
officers or trustees and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12.
Notices.
All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to Morgan
Stanley & Co. Incorporated (fax no.: (212) 507-2705) and confirmed to Morgan Stanley & Co.
Incorporated, 1585 Broadway, 29
th
Floor, New York, New York, 10036, Attention:
Investment Banking Information Center; or, if sent to the Company, will be mailed, delivered or
telefaxed to Regions Financial Corporation, R. Alan Deer (fax no.: (205) 326-7751), and confirmed
to R. Alan Deer, Executive Vice President, General Counsel and Corporate Secretary of Regions
Financial Corporation, 417 North 20
th
Street, Birmingham, Alabama 35202.
13.
Successors.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14.
APPLICABLE LAW.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF
21
NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN THE
STATE OF NEW YORK.
15.
Counterparts
. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
16.
Headings.
The section headings used herein are for convenience only and shall not
affect the construction hereof.
17.
Definitions
. The terms which follow, when used in this Agreement, shall have the
meanings indicated.
“Basic Prospectus” shall mean the prospectus of the Company dated August 3, 2005.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City or Birmingham, Alabama.
“Effective Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement
became or become effective.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“Final Prospectus” shall mean the final prospectus supplement, dated August 3, 2005,
relating to the Securities, together with the Basic Prospectus.
“Preliminary Prospectus” shall mean the preliminary prospectus supplement, dated August
3, 2005, relating to the Securities, together with the Basic Prospectus.
“Registration Statement” shall mean registration statement No. 333-126797, including
exhibits and financial statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective
prior to the Closing Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall include any Rule
430A Information deemed to be included therein at the Effective Date as provided by Rule
430A.
“Rule 415”, “Rule 424”, “Rule 430A” and “Rule 462” refer to such rules under the 1933
Act.
“Rule 430A Information” shall mean information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A.
22
“Rule 462(b) Registration Statement” shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the
registration statement referred to in Section 1(a) hereof.
18.
Offering of Securities
. Each Underwriter, severally and not jointly, represents,
warrants, and agrees with respect to offers and sales of the Securities outside of the United
States that:
(i) such Underwriter understands that no action has been or will be taken in any
jurisdiction outside of the United States by the Company that would permit a public offering
of the Securities, or possession or distribution of either the Preliminary Prospectus or the
Final Prospectus or any other offering or publicity material relating to the Securities, in
any country or jurisdiction outside of the United States where action for that purpose is
required;
(ii) in relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and
including the date on which the Prospectus Directive is implemented in that Relevant Member
State (a “Relevant Implementation Date”) it has not made and will not make an offer of
Securities to the public in that Relevant Member State prior to the publication of a
prospectus in relation to the Securities that has been appraised by the competent authority
in that Relevant Member State or, where appropriate, appraised in another Relevant Member
State and notified to the competent authority in that Relevant Member State, and in
accordance with the Prospectus Directive, except that it may, with effect from and including
the Relevant Implementation Date, make an offer of Securities to the public in that Relevant
Member State:
|
|
(a)
|
|
to legal entities which are authorized or
regulated to operate in the financial markets or, if not so authorized
or regulated, whose corporate purpose is solely to invest in
securities;
|
|
|
|
|
(b)
|
|
to any legal entity which has two or more of
(1) an average of at least 250 employees during the last financial
year; (2) a total balance sheet of more than €43,000,000 and (3) an
annual net turnover of more than €50,000,000, as shown in its last
annual or consolidated accounts; or
|
|
|
|
|
(c)
|
|
in any other circumstances which do not require
the publication by the Company of a prospectus pursuant to Article 3 of
the Prospectus Directive.
|
For the purposes of the above, the expression an “offer of Securities to the
public” in relation to any Securities in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the Securities to be offered so as to enable an
investor to decide to purchase or subscribe for the Securities, as the same
may be varied in that Relevant Member State by any measure
23
implementing the
Prospectus Directive in that Relevant Member State and the expression
Prospectus Directive means Directive 2003/71/EC and includes any relevant
implementing measure in that Relevant Member State;
(iii) it has only communicated or caused to be communicated and will only communicate
or cause to be communicated an invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the
“FSMA”)) received by it in connection with the issue or sale of the Securities in
circumstances in which Section 21(1) of the FSMA does not apply to the Company and it has
complied and will comply with all applicable provisions of the FSMA with respect to anything
done by it in relation to any Securities in, from or otherwise involving the United Kingdom;
(iv) it understands that the Securities have not been and will not be registered under
the Securities and Exchange Law of Japan, and that it has not offered or sold, and agrees
not to offer or sell, directly or indirectly, any Securities in Japan or for the account of
any resident thereof except pursuant to any exemption from the registration requirements of
the Securities and Exchange Law of Japan and otherwise in compliance with applicable
provisions of Japanese law; and
(v) it will offer, sell or deliver the Securities only in minimum denominations of
$5,000 and integral multiples of $1,000 in excess thereof.
24
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
|
|
|
|
|
|
|
|
Very truly yours,
REGIONS FINANCIAL CORPORATION
|
|
|
|
By:
|
/s/ Eric Haas
|
|
|
|
|
|
Name: Eric Haas
|
|
|
|
|
|
Title: Senior Vice President and Treasurer
|
|
|
|
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
MORGAN KEEGAN & COMPANY, INC.
MORGAN STANLEY & CO. INCORPORATED
By: MORGAN KEEGAN & COMPANY, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Brian Mellone
|
|
|
|
|
Name:
|
Brian Mellone
|
|
|
|
|
Title:
|
Senior Vice President
|
|
|
|
By: MORGAN STANLEY & CO. INCORPORATED
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Michael Fusco
|
|
|
|
|
Name:
|
Michael Fusco
|
|
|
|
|
Title:
|
Executive Director
|
|
|
|
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
25
SCHEDULE I
|
|
|
|
|
Underwriting Agreement dated:
|
|
August 3, 2005
|
|
|
|
|
|
Registration Statement No.
|
|
333-126797
|
|
|
|
|
|
Representative(s):
|
|
Morgan Keegan & Company, Inc. and Morgan
Stanley & Co. Incorporated
|
|
|
|
|
|
Closing Date:
|
|
August 8, 2005
|
|
|
|
|
Title, Purchase Price and Description of
the Floating Rate Notes:
|
|
|
|
|
|
Title:
|
|
Floating Rate Senior Notes due 2008
|
|
|
|
|
|
Aggregate principal amount:
|
|
$400,000,000
|
|
|
|
|
|
Minimum Denominations:
|
|
$5,000 and integral multiples of $1,000 in
excess thereof.
|
|
|
|
|
|
Stated maturity:
|
|
August 8, 2008
|
|
|
|
|
|
Interest rate:
|
|
Three-month LIBOR plus 0.08%
|
|
|
|
|
|
Designated LIBOR page:
|
|
Moneyline Telerate, Inc. page 3750
|
|
|
|
|
|
LIBOR Currency:
|
|
U.S. dollars
|
|
|
|
|
|
Initial interest rate:
|
|
To be determined as if the original issue date
were an interest reset date.
|
|
|
|
|
|
Interest payments dates:
|
|
February 8, May 8, August 8 and November 8 of
each year, commencing November 8, 2005.
|
|
|
|
|
|
Interest reset period:
|
|
Quarterly
|
|
|
|
|
|
Interest reset dates:
|
|
February 8, May 8, August 8 and November 8 of
each year, commencing November 8, 2005.
|
|
|
|
|
|
Interest determination date:
|
|
Two London Banking Days prior to the interest
reset date. “London Banking Day” means any
day on which dealings in deposits in U.S.
dollars are transacted in the London interbank
market.
|
|
|
|
|
|
Business Day convention:
|
|
If any interest payment date, other than the
date of maturity, falls on a day that is not a
Business Day, the interest payment date will
be the next day that is a Business Day, except
if that Business Day is in the next succeeding
calendar month, the interest payment date will
be the immediately preceding Business Day. If
the date of maturity of the Floating Rate
Notes falls on a day that is not a Business
Day, the payment of interest and principal
|
I-1
|
|
|
|
|
|
|
will be made on the next day that is a
Business Day, and no interest on the Floating
Rate Notes or such payment will accrue for the
period from and after the date of maturity.
If any interest reset date falls on a day that
is not a Business Day, the interest reset date
will be the next day that is a Business Day,
except if that Business Day is in the next
succeeding calendar month, the interest reset
date will be the immediately preceding
Business Day. “Business Day” means any day,
other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which
banking institutions in The City of New York
or Birmingham, Alabama are authorized by law,
regulation or executive order to close.
|
|
|
|
|
|
Day count convention:
|
|
Actual/360
|
|
|
|
|
|
Record dates:
|
|
The fifteenth calendar day, whether or not a
Business Day, prior to the applicable interest
payment date.
|
|
|
|
|
|
Redemption provisions:
|
|
None
|
|
|
|
|
|
Initial public offering price:
|
|
100% of the aggregate principal amount thereof
plus accrued interest, if any, from August 8,
2005.
|
|
|
|
|
|
Purchase price:
|
|
99.80% of the aggregate principal amount
thereof plus accrued interest, if any, from
August 8, 2005.
|
|
|
|
|
|
Underwriters’ commission:
|
|
0.20% of the aggregate principal amount thereof
|
|
|
|
|
|
Form:
|
|
Book-entry only
|
|
|
|
|
|
Type of Offering:
|
|
Non-delayed
|
|
|
|
|
Title, Purchase Price and Description of
the Fixed Rate Notes:
|
|
|
|
|
|
Title:
|
|
4.5% Senior Notes due 2008
|
|
|
|
|
|
Aggregate principal amount:
|
|
$350,000,000
|
|
|
|
|
|
Minimum Denominations:
|
|
$5,000 and integral multiples of $1,000 in
excess thereof.
|
|
|
|
|
|
Stated maturity:
|
|
August 8, 2008
|
|
|
|
|
|
Interest rate:
|
|
4.5% per annum
|
|
|
|
|
|
Interest payments dates:
|
|
February 8 and August 8 of each year,
commencing February 8, 2006.
|
|
|
|
|
|
Business Day convention:
|
|
If any interest payment date or the date of
maturity falls on a day that is not a Business
Day, the related payment of
|
I-2
|
|
|
|
|
|
|
interest and
principal will be made on the next day that is
a Business Day, and no interest on the Fixed
Rate Notes or such payment will accrue for the
period from and after the interest payment
date or date of maturity, as the case may be.
“Business Day” means any day, other than a
Saturday or Sunday, that is neither a legal
holiday nor a day on which banking
institutions in The City of New York or
Birmingham, Alabama are authorized by law,
regulation or executive order to close.
|
|
|
|
|
|
Day count convention:
|
|
30/360
|
|
|
|
|
|
Record dates:
|
|
The fifteenth calendar day, whether or not a
Business Day, prior to the applicable interest
payment date.
|
|
|
|
|
|
Redemption provisions:
|
|
None
|
|
|
|
|
|
Initial public offering price:
|
|
99.889% of the aggregate principal amount
thereof plus accrued interest, if any, from
August 8, 2005.
|
|
|
|
|
|
Purchase price:
|
|
99.689% of the aggregate principal amount
thereof plus accrued interest, if any, from
August 8, 2005.
|
|
|
|
|
|
Underwriters’ commission:
|
|
0.20% of the aggregate principal amount thereof
|
|
|
|
|
|
Form:
|
|
Book-entry only
|
|
|
|
|
|
Type of Offering:
|
|
Non-delayed
|
Date referred to in Section 5(h) after which the Company may offer or sell Securities issued by the
Company without the consent of the Representative(s): September 2, 2005.
Modification of items to be covered by the letter from
Ernst & Young LLP delivered pursuant to Section 6(g)
at the Execution Time: None
I-3
SCHEDULE II
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate
|
|
|
Aggregate
|
|
|
|
|
Principal
|
|
|
Principal
|
|
|
|
|
Amount of
|
|
|
Amount of
|
|
|
|
|
Floating Rate
|
|
|
Fixed Rate
|
|
|
|
|
Notes
|
|
|
Notes
|
|
|
|
|
to be
|
|
|
to be
|
|
|
Underwriters
|
|
Purchased
|
|
|
Purchased
|
|
|
Morgan Keegan & Company, Inc.
|
|
$
|
164,000,000
|
|
|
$
|
143,500,000
|
|
|
Morgan Stanley & Co. Incorporated
|
|
|
164,000,000
|
|
|
|
143,500,000
|
|
|
Bear, Stearns & Co. Inc.
|
|
|
24,000,000
|
|
|
|
21,000,000
|
|
|
J.P. Morgan Securities Inc.
|
|
|
24,000,000
|
|
|
|
21,000,000
|
|
|
UBS Securities LLC
|
|
|
24,000,000
|
|
|
|
21,000,000
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
400,000,000
|
|
|
$
|
350,000,000
|
|
|
|
|
|
|
|
|
|
II-1
EXHIBIT 4.1
REGIONS FINANCIAL CORPORATION
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
INDENTURE
Dated as of August 8, 2005
SENIOR DEBT SECURITIES
TABLE OF CONTENTS
|
|
|
|
|
|
|
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
|
1
|
|
|
SECTION 101. Definitions
|
|
|
1
|
|
|
SECTION 102. Compliance Certificates and Opinions
|
|
|
8
|
|
|
SECTION 103. Form of Documents Delivered to Trustee
|
|
|
8
|
|
|
SECTION 104. Acts of Holders
|
|
|
9
|
|
|
SECTION 105. Notices, etc., the Trustee and Company
|
|
|
10
|
|
|
SECTION 106. Notice to Holders; Waiver
|
|
|
10
|
|
|
SECTION 107. Effect of Headings and Table of Contents
|
|
|
11
|
|
|
SECTION 108. Successors and Assigns
|
|
|
11
|
|
|
SECTION 109. Separability Clause
|
|
|
11
|
|
|
SECTION 110. Benefits of Indenture
|
|
|
11
|
|
|
SECTION 111. No Personal Liability
|
|
|
11
|
|
|
SECTION 112. Governing Law
|
|
|
12
|
|
|
SECTION 113. Legal Holidays
|
|
|
12
|
|
|
ARTICLE TWO SECURITIES FORMS
|
|
|
12
|
|
|
SECTION 201. Forms of Securities
|
|
|
12
|
|
|
SECTION 202. Form of Trustee’s Certificate of Authentication
|
|
|
12
|
|
|
SECTION 203. Securities Issuable in Global Form
|
|
|
13
|
|
|
ARTICLE THREE THE SECURITIES
|
|
|
13
|
|
|
SECTION 301. Amount Unlimited; Issuable in Series
|
|
|
13
|
|
|
SECTION 302. Denominations
|
|
|
16
|
|
|
SECTION 303. Execution, Authentication, Delivery and Dating
|
|
|
16
|
|
|
SECTION 304. Temporary Securities
|
|
|
18
|
|
|
SECTION 305. Registration, Registration of Transfer and Exchange
|
|
|
19
|
|
|
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
21
|
|
|
SECTION 307. Payment of Interest; Interest Rights Preserved
|
|
|
22
|
|
|
SECTION 308. Persons Deemed Owners
|
|
|
23
|
|
|
SECTION 309. Cancellation
|
|
|
24
|
|
|
SECTION 310. Computation of Interest
|
|
|
24
|
|
|
SECTION 311. CUSIP Numbers
|
|
|
24
|
|
|
ARTICLE FOUR SATISFACTION AND DISCHARGE
|
|
|
24
|
|
|
SECTION 401. Satisfaction and Discharge of Indenture
|
|
|
24
|
|
|
SECTION 402. Application of Trust Funds
|
|
|
25
|
|
|
ARTICLE FIVE REMEDIES
|
|
|
25
|
|
|
SECTION 501. Events of Default
|
|
|
25
|
|
|
SECTION 502. Acceleration of Maturity; Rescission and Annulment
|
|
|
27
|
|
|
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
27
|
|
|
SECTION 504. Trustee May File Proofs of Claim
|
|
|
28
|
|
|
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons
|
|
|
28
|
|
|
SECTION 506. Application of Money Collected
|
|
|
29
|
|
|
SECTION 507. Limitation on Suits
|
|
|
29
|
|
|
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium or
Make-Whole Amount, if any, Interest and Additional Amounts
|
|
|
29
|
|
|
SECTION 509. Restoration of Rights and Remedies
|
|
|
30
|
|
|
SECTION 510. Rights and Remedies Cumulative
|
|
|
30
|
|
|
SECTION 511. Delay or Omission Not Waiver
|
|
|
30
|
|
|
SECTION 512. Control by Holders of Securities
|
|
|
30
|
|
|
SECTION 513. Waiver of Past Defaults
|
|
|
30
|
|
|
SECTION 514. Waiver of Stay, Usury or Extension Laws
|
|
|
31
|
|
|
SECTION 515. Undertaking for Costs
|
|
|
31
|
|
|
ARTICLE SIX THE TRUSTEE
|
|
|
31
|
|
|
SECTION 601. Notice of Defaults
|
|
|
31
|
|
|
SECTION 602. Certain Duties, Responsibilities and Rights of Trustee
|
|
|
31
|
|
i
|
|
|
|
|
|
|
SECTION 603. Not Responsible for Recitals or Issuance of Securities
|
|
|
32
|
|
|
SECTION 604. May Hold Securities
|
|
|
32
|
|
|
SECTION 605. Money Held in Trust
|
|
|
33
|
|
|
SECTION 606. Compensation and Reimbursement
|
|
|
33
|
|
|
SECTION 607. Corporate Trustee Required; Eligibility
|
|
|
33
|
|
|
SECTION 608. Resignation and Removal; Appointment of Successor
|
|
|
33
|
|
|
SECTION 609. Acceptance of Appointment By Successor
|
|
|
34
|
|
|
SECTION 610. Merger, Conversion, Consolidation or Succession to Business
|
|
|
35
|
|
|
SECTION 611. Appointment of Authenticating Agent
|
|
|
35
|
|
|
SECTION 612. Certain Duties and Responsibilities
|
|
|
36
|
|
|
SECTION 613. Conflicting Interests
|
|
|
36
|
|
|
SECTION 614. Preferential Collection of Claims Against Company
|
|
|
37
|
|
|
SECTION 615. United States Patriot Act
|
|
|
37
|
|
|
ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
37
|
|
|
SECTION 701. Disclosure of Names and Addresses of Holders
|
|
|
37
|
|
|
SECTION 702. Reports by Trustee
|
|
|
37
|
|
|
SECTION 703. Reports by Company
|
|
|
37
|
|
|
SECTION 704. Company to Furnish Trustee Names and Addresses of Holders
|
|
|
38
|
|
|
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
|
|
|
38
|
|
|
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions
|
|
|
38
|
|
|
SECTION 802. Rights and Duties of Successor Corporation
|
|
|
38
|
|
|
SECTION 803. Officers’ Certificate and Opinion of Counsel
|
|
|
39
|
|
|
ARTICLE NINE SUPPLEMENTAL INDENTURES
|
|
|
39
|
|
|
SECTION 901. Supplemental Indentures Without Consent of Holders
|
|
|
39
|
|
|
SECTION 902. Supplemental Indentures with Consent of Holders
|
|
|
40
|
|
|
SECTION 903. Execution of Supplemental Indentures
|
|
|
41
|
|
|
SECTION 904. Effect of Supplemental Indentures
|
|
|
41
|
|
|
SECTION 905. Conformity with Trust Indenture Act
|
|
|
41
|
|
|
SECTION 906. Reference in Securities to Supplemental Indentures
|
|
|
41
|
|
|
SECTION 907. Notice of Supplemental Indentures
|
|
|
41
|
|
|
ARTICLE TEN COVENANTS
|
|
|
41
|
|
|
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if
any, Interest and Additional Amounts
|
|
|
41
|
|
|
SECTION 1002. Maintenance of Office or Agency
|
|
|
42
|
|
|
SECTION 1003. Money for Securities Payments to Be Held in Trust
|
|
|
43
|
|
|
SECTION 1004. [Reserved]
|
|
|
43
|
|
|
SECTION 1005. Existence
|
|
|
43
|
|
|
SECTION 1006. Maintenance of Properties
|
|
|
44
|
|
|
SECTION 1007. [Reserved]
|
|
|
44
|
|
|
SECTION 1008. Payment of Taxes and Other Claims
|
|
|
44
|
|
|
SECTION 1009. Provision of Financial Information
|
|
|
44
|
|
|
SECTION 1010. Statement as to Compliance
|
|
|
44
|
|
|
SECTION 1011. Additional Amounts
|
|
|
44
|
|
|
SECTION 1012. Waiver of Certain Covenants
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45
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|
SECTION 1013. Sale or Issuance of Capital Stock of
Principal Subsidiary Bank
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45
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ARTICLE ELEVEN REDEMPTION OF SECURITIES
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|
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46
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|
|
SECTION 1101. Applicability of Article
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46
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SECTION 1102. Election to Redeem; Notice to Trustee
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|
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46
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|
|
SECTION 1103. Selection by Trustee of Securities to Be Redeemed
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|
|
47
|
|
|
SECTION 1104. Notice of Redemption
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|
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47
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SECTION 1105. Deposit of Redemption Price
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48
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SECTION 1106. Securities Payable on Redemption Date
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48
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SECTION 1107. Securities Redeemed in Part
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49
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|
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ARTICLE TWELVE SINKING FUNDS
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|
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49
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SECTION 1201. Applicability of Article
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49
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|
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities
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|
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49
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|
ii
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SECTION 1203. Redemption of Securities for Sinking Fund
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49
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ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS
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|
|
50
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|
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SECTION 1301. Applicability of Article
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|
|
50
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|
SECTION 1302. Repayment of Securities
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50
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SECTION 1303. Exercise of Option
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|
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50
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|
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable
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|
|
51
|
|
|
SECTION 1305. Securities Repaid in Part
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|
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51
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|
|
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE
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|
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51
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|
|
SECTION 1401. Applicability of Article; Company’s Option to Effect
Defeasance or Covenant Defeasance
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|
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51
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SECTION 1402. Defeasance and Discharge
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52
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SECTION 1403. Covenant Defeasance
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52
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SECTION 1404. Conditions to Defeasance or Covenant Defeasance
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|
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52
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|
|
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions
|
|
|
53
|
|
|
SECTION 1406. Reinstatement
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|
|
54
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|
|
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES
|
|
|
54
|
|
|
SECTION 1501. Purposes for Which Meetings May Be Called
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|
|
54
|
|
|
SECTION 1502. Call, Notice and Place of Meetings
|
|
|
55
|
|
|
SECTION 1503. Persons Entitled to Vote at Meetings
|
|
|
55
|
|
|
SECTION 1504. Quorum; Action
|
|
|
55
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|
|
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings
|
|
|
56
|
|
|
SECTION 1506. Counting Votes and Recording Action of Meetings
|
|
|
56
|
|
|
SECTION 1507. Evidence of Action Taken by Holders
|
|
|
56
|
|
|
SECTION 1508. Proof of Execution of Instruments
|
|
|
57
|
|
|
ARTICLE SIXTEEN CONVERSION OR EXCHANGE OF SECURITIES
|
|
|
57
|
|
|
SECTION 1601. Applicability of Article
|
|
|
57
|
|
|
SECTION 1602. Election to Exchange; Notice to Trustee and Holders
|
|
|
57
|
|
|
SECTION 1603. No Fractional Shares
|
|
|
57
|
|
|
SECTION 1604. Adjustment of Exchange Rate
|
|
|
57
|
|
|
SECTION 1605. Payment of Certain Taxes Upon Exchange
|
|
|
58
|
|
|
SECTION 1606. Shares Free and Clear
|
|
|
58
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|
|
SECTION 1607. Cancellation of Security
|
|
|
58
|
|
|
SECTION 1608. Duties of Trustee Regarding Exchange
|
|
|
58
|
|
|
SECTION 1609. Repayment of Certain Funds Upon Exchange
|
|
|
58
|
|
|
SECTION 1610. Exercise of Conversion Privilege
|
|
|
59
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|
SECTION 1611. Effect of Consolidation or Merger
on Conversion Privilege
|
|
|
60
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|
iii
REGIONS FINANCIAL CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939, as amended (the “TIA”), and Indenture,
dated as of August 8, 2005
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|
|
|
|
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Trust Indenture Act Section
|
|
Indenture Section
|
|
Section 310(a)(1)
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607
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(a)(2)
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607
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(b)
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613
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Section 312(c)
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701
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Section 314(a)
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703
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(a)(4)
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1010
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(c)(1)
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102
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(c)(2)
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|
|
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102
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(e)
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102
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Section 315(b)
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601
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Section 316(a)(last sentence)
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101 (“Outstanding”)
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(a)(1)(A)
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502,512
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(a)(1)(B)
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|
|
513
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(b)
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|
|
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508
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Section 317(a)(1)
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|
|
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503
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(a)(2)
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|
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504
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Section 318(a)
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|
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112
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(c)
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|
|
|
112
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
Attention should also be directed to Section 318(c) of the TIA, which provides that the
provisions of Sections 310 to and including 317 of the TIA are a part of and govern every
qualified indenture, whether or not physically contained therein.
iv
INDENTURE
INDENTURE, dated as of August 8, 2005, between REGIONS FINANCIAL CORPORATION, a Delaware
corporation (hereinafter called the “Company”), having its principal office at 417 North
20
th
Street, Birmingham, Alabama 35203 and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New
York banking corporation, as Trustee hereunder (hereinafter called the “Trustee”), having its
Corporate Trust Office at 60 Wall Street, 27th Floor, New York, New York 10005.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful purposes senior debt
securities (hereinafter called the “Securities”) evidencing its unsecured and unsubordinated
indebtedness, and has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of the Securities, unlimited as to aggregate principal amount, to
bear interest at the rates or formulas, to mature at such times and to have such other provisions
as shall be fixed therefor as hereinafter 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 covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities, 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 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, and the terms “cash
transaction” and “self- liquidating paper,” as used in Trust Indenture Act Section 311, shall have
the meanings assigned to them in the rules of the Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles; and
(4) 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.
Certain terms, used principally in Article Three, Article Five, Article Six and Article Ten,
are defined in those Articles. In addition, the following terms shall have the indicated
respective meanings:
“Act” has the meaning specified in Section 104.
“Additional Amounts” means any additional amounts which are required by a Security, under
circumstances specified therein, to be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders in order that they receive the amount they
would have received as if such taxes had not been imposed.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Authenticating Agent” means any authenticating agent appointed by the Trustee pursuant to
Section 611.
“Authorized Newspaper” means a newspaper, printed in the English language or in an official
language of the country of publication, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general circulation in each place in connection
with which the term is used or in the financial community of each such place. Whenever successive
publications are required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
“Bankruptcy Law” has the meaning specified in Section 501.
“Bearer Security” means a Security issued hereunder which is payable to bearer.
“Board of Directors” means the Board of Directors of the Company, the executive committee or
any other committee or director of that board duly authorized to act for it in respect hereof.
“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 or a committee to
which authority to act on behalf of the Board of Directors has been lawfully delegated, 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 or any other particular
location referred to in this Indenture or in the Securities, means, unless otherwise specified with
respect to any Securities pursuant to Section 301, any day, other than a Saturday or Sunday, that
is neither a legal holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive order to close.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated) the
equity of such Person, including any Preferred Stock, but excluding any debt securities convertible
into such equity.
“Clearstream” means Clearstream Banking, société anonyme, or its successor.
“Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after 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 on such date.
“Common Depository” has the meaning specified in Section 304(b).
“Company” means the Person named as the “Company” in the first paragraph of this Indenture
until a successor corporation shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request” and “Company Order” mean, respectively, a written request or order signed in
the name of the Company by the President or a Vice President of the Company, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
“Conversion Event” means the cessation of use of (i) a Foreign Currency (other than as
otherwise provided with respect to a Security pursuant to Section 301) as provided by the
government of the country which issued such currency and for the settlement of transactions by a
central bank or other public institutions of or within the international banking community or (ii)
any currency unit (or composite currency) for the purposes for which it was established.
“Corporate Trust Office” means the office of the Trustee at which, at any particular time, its
corporate trust business shall be principally administered, which office at the date hereof is
located at 60 Wall Street, 27
th
Floor, New York, NY 10005, or at any other time at such
other address as the Trustee may designate from time to time by notice to the Holders.
“Corporation” includes corporations, associations, companies and business trusts.
2
“Coupon” means any interest coupon appertaining to a Bearer Security.
“Custodian” has the meaning set forth in Section 501.
“Debt” means the principal, premium, if any, unpaid interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization relating to the Company
whether or not a claim for post-filing interest is allowed in such proceeding), fees, charges,
expenses, reimbursement and indemnification obligations, and all other amounts payable under or in
respect of the following indebtedness of the Company, whether any such indebtedness exists as of
the date of the Indenture or is created, incurred or assumed after such date:
|
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(i)
|
|
any debt (a) for money borrowed, or (b) evidenced by a bond, note, debenture, or
similar instrument (including purchase money obligations) whether or not given in
connection with the acquisition of any business, property or assets, whether by purchase,
merger, consolidation or otherwise, but shall not include any account payable or other
obligation created or assumed in the ordinary course of business in connection with the
obtaining of materials or services, or (c) which is a direct or indirect obligation which
arises as a result of banker’s acceptances or bank letters of credit issued to secure
obligations of the Company, or to secure the payment of revenue bonds issued for the
benefit of the Company, whether contingent or otherwise;
|
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|
|
|
(ii)
|
|
any debt of others described in the preceding clause (i) which the Company has
guaranteed or for which it is otherwise liable;
|
|
|
|
|
(iii)
|
|
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Company;
|
|
|
|
|
(iv)
|
|
the obligation of the Company, as lessee under any lease of property that is or is
required to be reflected on the Company’s balance sheet as a capitalized lease in
accordance with GAAP; and
|
|
|
|
|
(v)
|
|
any deferral, amendment, renewal, extension, supplement, modification or refunding of
any liability of the kind described in any of the preceding clauses (i), (ii), (iii) and
(iv);
|
provided, however, that, in computing indebtedness of the Company, there shall be excluded any
particular indebtedness if, (i) upon or prior to the maturity thereof, there shall have been
deposited with an unaffiliated depository in trust money (or evidence of indebtedness if permitted
by the instrument creating such indebtedness) in the necessary amount to pay, redeem or satisfy
such indebtedness as it becomes due (or, if applicable, as it may be redeemed prior to its stated
maturity in accordance with the terms, if any, regarding early redemption set forth in the
instrument governing such indebtedness), and the amount so deposited shall not be included in any
computation of the assets of the Company and (ii) prior to such deposit the Company shall deliver
an Officers’ Certificate to the Trustee which shall certify that such amount has been so deposited
with such depository.
“Defaulted Interest” has the meaning specified in Section 307.
“Depository” when used with respect to the Securities of or within any series issuable or
issued in whole or in part in global form, means the Person designated as depository by the Company
pursuant to Section 301 until a successor Depository shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter shall mean or include each Person which is
then a Depository hereunder, and if at any time there is more than one such Person, shall be a
collective reference to such Persons.
“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United
States of America as at the time shall be legal tender for payment of public and private debts.
“DTC” means The Depository Trust Company.
“Euroclear” means Euroclear Bank S.A./N.V., or its successor as operator of the Euroclear
System.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder by the Commission.
3
“Exchange Rate Agent” unless otherwise specified with respect to Securities of or within any
series pursuant to Section 301, means a bank designated as such in accordance with Section 301
(which may include any such bank acting as Trustee).
“Exchange Rate Officer’s Certificate” means a certificate in the form attached as Exhibit B
setting forth (i) the applicable market exchange rate or the applicable bid quotation and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an
aggregate basis and on the basis of a Security having the lowest denomination principal amount in
the relevant currency or currency unit), payable with respect to a Security of any series on the
basis of such market exchange rate or the applicable bid quotation, signed by the Chief Financial
Officer, Treasurer, or any Vice President of the Company.
“Expiration Date” means any date designated as such pursuant to Section 104(h) hereof.
“Foreign Currency” means any currency, currency unit or composite currency issued by the
government of one or more countries other than the United States of America or by any recognized
confederation or association of such governments.
“GAAP” means generally accepted accounting principles as used in the United States applied on
a consistent basis as in effect from time to time; provided that solely for purposes of any
calculation required by the financial covenants contained herein, “GAAP” shall mean generally
accepted accounting principles as used in the United States on the date hereof, applied on a
consistent basis.
“Government Obligations” means securities which are (i) direct obligations of the United
States of America or, if specified as contemplated by Section 301, the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for the payment of
which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America or, if specified as
contemplated by Section 301, such government which issued the Foreign Currency in which the
Securities of such series are payable, the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with respect to any
such Government Obligation or a specific payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of a depository receipt, 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 depository receipt from any amount received by the custodian
in respect of the Government Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
“Holder” means, in the case of a Registered Security, the Person in whose name a Security is
registered in the Security Register and, in the case of a Bearer Security, the bearer thereof and,
when used with respect to any coupon, shall mean the bearer thereof.
“Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 301; provided, however, that, if at any time more than one
Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the
terms of the or those particular series of Securities for which such Person is Trustee established
as contemplated by Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless of when such terms
or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
“Indexed Security” means a Security the terms of which provide that the principal amount
thereof payable at Stated Maturity may be more or less than the principal face amount thereof at
original issuance.
“Interest” when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, shall mean interest payable after Maturity, and, when used with
respect to a Security which provides for the payment of Additional Amounts pursuant to Section
1011, includes such Additional Amounts.
4
“Interest Payment Date” means, when used with respect to any Security, the Stated Maturity of
an installment of interest on such Security.
“Make-Whole Amount” means the amount, if any, in addition to principal which is required by a
Security, under the terms and conditions specified therein or as otherwise specified as
contemplated by Section 301, to be paid by the Company to the Holder thereof in connection with any
optional redemption or accelerated payment of such Security.
“Maturity” means, when used with respect to any Security, the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment, repurchase or otherwise.
“Officers’ Certificate” means a certificate signed by 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.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel
for the Company or other counsel satisfactory to the Trustee.
“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:
|
|
(i)
|
|
Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
|
|
|
|
|
(ii)
|
|
Securities, or portions thereof, for whose payment or redemption or repayment at the
option of the Holder money in the necessary amount and the required currency 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 and any coupons appertaining thereto;
provided that, if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or other provision therefor satisfactory to the
Trustee has been made;
|
|
|
|
|
(iii)
|
|
Securities, except solely to the extent provided in Sections 1402 or 1403, as
applicable, with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Fourteen;
|
|
|
|
|
(iv)
|
|
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; and
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|
|
|
|
(v)
|
|
Securities converted or exchanged into other securities or property of the Company
pursuant to or in accordance with this Indenture if the terms of such Securities provide
for convertibility or exchange pursuant to Section 301; provided, however, that in
determining whether the Holders of the requisite principal amount of the Outstanding
Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the
purpose of making the calculations required by Trust Indenture Act Section 313, (i) the
principal amount of an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such purpose
shall be equal to the amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 502, (ii) the principal amount of
any Security denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such purpose shall
be equal to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company as set forth in an Exchange Rate Officer’s
Certificate delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of original
issuance of the amount determined as provided in clause (i) above) of such Security, (iii)
the principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed outstanding for such purpose shall
be equal to the principal face amount of such
|
5
|
|
|
|
Indexed Security at original issuance, unless otherwise provided with respect to such
Indexed Security pursuant to Section 301, and (iv) Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation or in
relying upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually knows to be
so owned shall be 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 pledgee’s right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
|
“Paying Agent” means any Person authorized by the Company to pay the principal of (and premium
or Make-Whole Amount, if any), interest or any other payments on any Securities, or coupons on
behalf of the Company, or if no such Person is authorized, the Company.
“Person” means any individual, corporation, partnership, limited liability company, joint
venture, association, joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
“Place of Payment” means, when used with respect to the Securities of or within any series,
the place or places where the principal of (and premium or Make-Whole Amount, if any), interest and
any other payment on such Securities are payable as specified as contemplated by Sections 301 and
1002.
“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 or a Security to which a mutilated,
destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security or the Security to which the mutilated, destroyed,
lost or stolen coupon appertains.
“Preferred Stock” means, as applied to the Capital Stock of any corporation, Capital Stock of
any class or classes (however designated) which is preferred as to the payment of dividends, or as
to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such corporation.
“Principal Subsidiary Bank” means any Subsidiary Bank, the consolidated assets of which
constitute 50% or more of the consolidated assets of the Company.
“Redemption Date” means, when used with respect to any security to be redeemed in whole or in
part, the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price” means, when used with respect to any Security to be redeemed in whole or in
part, the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security” means any Security which is registered in the Security Register.
“Regions Trust” means one or more business trusts, partnerships or limited liability companies
created by the Company for the purpose of issuing undivided beneficial interests therein in
connection with the purchase of subordinated debt securities issued by the Company under any
indenture.
“Regular Record Date” for the installment of interest payable on any Interest Payment Date on
the Registered Securities of or within any series means the date specified for that purpose as
contemplated by Section 301, whether or not a Business Day.
“Repayment Date” means, when used with respect to any Security to be repaid or repurchased at
the option of the Holder, the date fixed for such repayment or repurchase by or pursuant to this
Indenture.
“Repayment Price” means, when used with respect to any Security to be repaid or purchased at
the option of the Holder, the price at which it is to be repaid or repurchased pursuant to this
Indenture.
6
“Responsible Officer” means, with respect to the Trustee, any officer within the Corporate
Trust Office including any vice president, assistant vice president, managing director, assistant
treasurer, secretary, assistant secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated officers and having
direct responsibility for the administration of this Indenture, and also, with respect to a
particular matter, any other officer to whom such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder by the Commission.
“Security” has the meaning stated in the first recital of this Indenture and, more
particularly, means any Security or Securities authenticated and delivered under this Indenture;
provided, however, that if at any time there is more than one Person acting as Trustee under this
Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have
the meaning stated in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of
or within any series as to which such Person is not Trustee.
“Security Register” and “Security Registrar” have the respective meanings specified in Section
305.
“Significant Subsidiary” means any Subsidiary which is a “significant subsidiary” (within the
meaning of Regulation S-X, promulgated under the Securities Act) of the Company. The term
Significant Subsidiary shall not include any Regions Trust, but shall in any event include any
Principal Subsidiary Bank.
“Special Record Date” for the payment of any Defaulted Interest on the Registered Securities
of or within any series means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity” means, when used with respect to any Security or any installment of
principal thereof or interest thereon, the date specified in such Security or a coupon representing
such installment of interest 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) any corporation or other entity of which a
majority of (i) the voting power of the voting equity securities or (ii) the outstanding equity
interests of which are owned, directly or indirectly, by such Person or (b) any other Person which
is otherwise controlled 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 equity securities” means equity securities having voting power for the election
of directors or other similar entity, whether at all times or only so long as no senior class of
security has such voting power by reason of any contingency.
“Subsidiary Bank” means any Subsidiary of the Company which is a bank or trust company
organized and doing business under any state or federal law.
“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended and as in
force at the date as of which this Indenture was executed, except as provided in Section 905.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture
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; provided, however, that if at any time there is more than one such Person, “Trustee” as
used with respect to the Securities of or within any series shall mean only the Trustee with
respect to the Securities of that series.
“United States” means, unless otherwise specified with respect to any Securities pursuant to
Section 301, the United States of America (including the states and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
“United States person” means, unless otherwise specified with respect to any Securities
pursuant to Section 301, an individual who is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the laws of the United
States or any state or the District of Columbia or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
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“Voting Stock” of a Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.
“Wholly-owned Subsidiary” means a Subsidiary all the Capital Stock of which (other than
directors’ qualifying shares and shares held by other Persons to the extent such shares are
required by applicable law to be held by a Person other than the Company or a Subsidiary) is owned
by the Company or one or more Wholly-owned Subsidiaries.
“Yield to Maturity” means the yield to maturity, computed at the time of issuance of a
Security (or, if applicable, at the most recent predetermination of interest on such Security) and
as set forth in such Security in accordance with generally accepted United States bond yield
computation principles.
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 an Officers’ Certificate
stating that all conditions precedent, if any, provided for in this Indenture (including covenants,
compliance with which constitute conditions precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (excluding certificates delivered pursuant to Section 1010) shall include:
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(1)
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a statement that each individual signing such certificate or opinion has read such
condition or covenant and the definitions herein relating thereto;
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(2)
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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)
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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 condition or covenant has been complied with; and
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(4)
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a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
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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 as 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 an Opinion of Counsel, or a certificate or representations by counsel, unless
such officer knows, or in the exercise of reasonable care should know, that the opinion,
certificate or representations with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such Opinion of Counsel or certificate or representations 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 as to such factual matters is in
the possession of the Company, unless such counsel knows that the certificate or opinion or
representations as 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.
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SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all
series or one or more series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series voting in favor
thereof, whether in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to Section 612)
conclusive in favor of the Trustee and the Company and any agent of the Trustee or the Company, if
made in the manner provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
(b) 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. 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 reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security Register or by a
certificate of the Security Registrar.
(d) The ownership of Bearer Securities may be proved by the production of such Bearer
Securities or by a certificate executed, as depository, by any trust company, bank, banker or other
depository, wherever situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such person had on deposit with such
depository, or exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company
may assume that such ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3) such Bearer Security
is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any other manner which the
Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered Securities any request,
demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its
option, in or pursuant to a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c),
such record date shall be the record date specified in or pursuant to such Board Resolution, which
shall be a date not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation is completed. If
such a record date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the Holders of record
at the close of business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding Securities have authorized
or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other Act, and for that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.
(f) 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, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
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(g) The Trustee, in its sole discretion, 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 the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company’s 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.
(h) With respect to any record date set pursuant to this Section, the party hereto which sets
such record dates 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 180/th/ 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., the 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,
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(1)
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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 & Securities Services, or
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(2)
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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 Indenture or at any other address
previously furnished in writing to the Trustee by the Company.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of Registered Securities by
the Company or the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service or by reason of
any other cause it shall be impracticable or unreliable to give such notice by mail, then such
notification to Holders of Registered Securities as shall be made with the approval of the Trustee
shall constitute a sufficient notification to such Holders for every purpose hereunder.
10
Except as otherwise expressly provided herein or otherwise specified with respect to any
Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer
Securities of any event, such notice shall be sufficiently given if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may be specified in such
Securities, and if the Securities of such series are listed on any stock exchange outside the
United States, in any place at which such Securities are listed on a securities exchange to the
extent that such securities exchange so requires, on a Business Day, such publication to be not
later than the latest date, and not earlier than the earliest date, prescribed for the giving of
such notice. Any such notice shall be deemed to have been given on the date of such publication or,
if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper or Authorized
Newspapers or by reason of any other cause it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by publication to any
particular Holder of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of Registered Securities given as provided
herein.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted
under this Indenture shall be in the English language, except that any published notice may be in
an official language of the country of publication.
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.
All notices, requests and other communications to the Trustee shall be in writing (including
telecopy or similar writing or other electronic communication acceptable to the Trustee) and shall
be given to the Trustee, addressed to it at the Corporate Trust Office of the Trustee.
SECTION 107. 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 108. 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 109. Separability Clause.
In case any provision in this Indenture or in any Security or coupon 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 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons appertaining thereto, express or
implied, shall give to any Person, other than the parties hereto, any Security Registrar, any
Paying Agent, any Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. No Personal Liability.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture,
in any Security or coupon appertaining thereto, or because of any indebtedness evidenced thereby,
shall be had against any promoter, as such, or against any past, present or future shareholder,
officer or director, as such, of the Company or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Securities by the Holders
thereof and as part of the consideration for the issue of the Securities.
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SECTION 112. Governing Law.
This Indenture and the Securities and coupons shall be governed by and construed in accordance
with the laws of the State of New York. This Indenture is subject to the provisions of the TIA
that are required to be part of this Indenture and shall, to the extent applicable, be governed by
such provisions and any provisions of this Indenture that are not permitted by the provisions of
the TIA shall be deemed to be deleted or modified to the extent such provisions are required to be
deleted or modified for the Indenture to be qualified under the TIA.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity of any Security or the last date on which a Holder has
the right to convert or exchange a Security at a particular conversion or exchange price shall not
be a Business Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or any Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of interest or any
Additional Amounts or principal (and premium or Make- Whole Amount, if any) need not be made at
such Place of Payment on such date and conversion or exchange 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, Redemption Date, Repayment
Date or sinking fund payment date, or at the Stated Maturity or Maturity or on such last day for
conversion or exchange, provided that so long as such payment is made on the next succeeding
Business Day, no interest shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity
or Maturity or on such last day for conversion or exchange, as the case may be, to such next
succeeding Business Day.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer Securities, if any, and
related coupons of each series, shall be in substantially the forms as shall be established in or
pursuant to one or more indentures supplemental hereto or Board Resolutions, shall have such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture or any indenture 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 and as are not inconsistent with the provisions of this Indenture, or
as may be required to comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which the Securities may be listed or any
Depository therefor, or to conform to usage. If temporary Securities of any series are issued as
permitted by Section 304, the form thereof also shall be established as provided in the preceding
sentence. If the forms of Securities and coupons, if any, of any series are established by, or by
action taken pursuant to, a Board Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto, including a copy of the approved form
of Securities or coupons, if any, 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.
Unless otherwise specified as contemplated by Section 301, Bearer Securities shall have
interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or engraved or produced
by any combination of these methods on a steel engraved border or steel engraved borders or may be
produced in any other manner, all as determined by the officers of the Company executing such
Securities or coupons, as evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee’s Certificate of Authentication.
Subject to Section 611, the Trustee’s certificate 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.
DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE
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By:_______________________ Authorized Officer
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as specified as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301 and the provisions of Section 302,
any such Security shall represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities of such series represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby
shall be made by the Trustee in such manner and upon written instruction given by such Person or
Persons as shall be specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the
manner and upon written instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any Security represented by
a Security in global form if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Security in global form together with written instructions (which need
not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with regard to
the reduction in the principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by
Section 301, payment of principal of and any premium or Make- Whole Amount and interest on any
Security in permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a permanent global
Security (i) in the case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent global Security in
bearer form, Euroclear or Clearstream.
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 one or more Board Resolutions, or indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of which (except for the
matters set forth in clauses (1), (2) and (15) below), if so provided, may be determined from time
to time by the Company with respect to unissued Securities of or within the series when issued from
time to time):
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(1)
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the title of the Securities of or within the series (which shall distinguish
the Securities of such series from all other series of Securities);
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(2)
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any limit upon the aggregate principal amount of the Securities of or within
the series that 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 or within the series pursuant to Section 304,
305, 306, 906, 1107, or 1305);
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(3)
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the date or dates, or the method by which such date or dates will be
determined, on which the principal of the Securities of or within the series shall be
payable and the amount of principal payable thereon;
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(4)
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the rate or rates (which may be fixed or variable) at which the Securities of
or within the series shall bear interest, if any, and Additional Interest, if any, or
the method by which such rate or rates shall be determined, the date or dates from
which such interest shall accrue or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date shall be determined, and the
basis upon which interest shall be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
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(5)
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the place or places, if any, other than or in addition to the City of
Birmingham, Alabama or the Borough of Manhattan, The City of New York, where the
principal of (and premium or Make-Whole Amount, if any), interest, if any, on, and
Additional Amounts, if any, payable in respect of, Securities of or within the series
shall be payable, any Registered Securities of or within the series may be surrendered
for registration of transfer, exchange or conversion and notices or demands to or upon
the Company in respect of the Securities of or within the series and this Indenture may
be served;
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(6)
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the period or periods within which, the price or prices (including the premium
or Make-Whole Amount, if any) at which, the currency or currencies, currency unit or
units or composite currency or currencies in which and other terms and conditions
upon which Securities of or within the series may be redeemed in whole or in part, at
the option of the Company, if the Company is to have the option;
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(7)
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the obligation, if any, of the Company to redeem, repay or purchase Securities
of or within the series pursuant to any sinking fund or analogous provision or at the
option of a Holder thereof, and the period or periods within which or the date or dates
on which, the price or prices at which, the currency or currencies, currency unit or
units or composite currency or currencies in which, and other terms and conditions upon
which Securities of or within the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
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(8)
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if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which any Registered Securities of or within the series shall be
issuable and, if other than the denomination of $5,000 and any integral multiple
thereof, the denomination or denominations in which any Bearer Securities of or within
the series shall be issuable;
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(9)
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if other than the Trustee, the identity of each Security Registrar and/or
Paying Agent;
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(10)
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if other than the principal amount thereof, the portion of the principal amount
of Securities of or within the series that shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 502 or, if applicable, the
portion of the principal amount of Securities of or within the series that is
convertible in accordance with the provisions of this Indenture, or the method by which
such portion shall be determined;
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(11)
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if other than Dollars, the Foreign Currency or Currencies in which payment of
the principal of (and premium or Make-Whole Amount, if any) or interest or Additional
Amounts, if any, on the Securities of or within the series shall be payable or in which
the Securities of or within the series shall be denominated;
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(12)
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whether the amount of payments of principal of (and premium or Make- Whole
Amount, if any) or interest, if any, on the Securities of or within the series may be
determined with reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other indices), and the manner in
which such amounts shall be determined;
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(13)
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whether the principal of (and premium or Make Whole Amount, if any) or interest
or Additional Amounts, if any, on the Securities of or within the series are to be
payable, at the election of the Company or a Holder thereof, in a currency or
currencies, currency unit or units or composite currency or currencies other than that
in which such Securities are denominated or stated to be payable, the period or periods
within which, and the terms and conditions upon which, such election may be made, and
the time and manner of, and identity of the Exchange Rate Agent with responsibility
for, determining the exchange rate between the currency or currencies, currency unit or
units or composite currency or currencies in which such Securities are denominated or
stated to be payable and the
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currency or currencies, currency unit or units or composite currency or currencies in
which such Securities are to be so payable;
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(14)
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provisions, if any, granting special rights to the Holders of Securities of or
within the series upon the occurrence of such events as may be specified;
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(15)
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(a) any deletions from, modifications of or additions to the Events of Default
with respect to Securities of or within the series, whether or not such Events of
Default are consistent with the Events of Default set forth herein and (b) any
deletions from, modifications of or additions to the covenants of the Company set forth
herein with respect to the Securities of or within the series, whether or not such
covenants are consistent with the covenants set forth herein;
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(16)
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whether Securities of or within the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any restrictions
applicable to the offer, sale or delivery of Bearer Securities and the terms upon which
Bearer Securities of or within the series may be exchanged for Registered Securities of
or within the series and vice versa (if permitted by applicable laws and regulations),
whether any Securities of or within the series are to be issuable initially in
temporary global form and whether any Securities of or within the series are to be
issuable in permanent global form (with or without coupons) and, if so, whether
beneficial owners of interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if other
than in the manner provided in Section 305, and, if Registered Securities of or within
the series are to be issuable as a global Security, the identity of the depository for
such series;
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(17)
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the date as of which any Bearer Securities of or within the series and any
temporary global Security representing Outstanding Securities of or within the series
shall be dated if other than the date of original issuance of the first Security of the
series to be issued;
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(18)
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the Person to whom any interest on any Registered 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, the manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise than upon presentation
and surrender of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a temporary global
Security on an Interest Payment Date will be paid if other than in the manner provided
in Section 304;
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(19)
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the applicability, if any, of Sections 1402 and/or 1403 to the Securities of or
within the series and any provisions in modification of, in addition to or in lieu of
any of the provisions of Article Fourteen and, if the Securities of the series are
payable in a currency other than Dollars, whether, for purposes of such defeasance or
covenant defeasance the term “Government Obligations” shall include obligations
referred to in the definition of such term which are not obligations of the United
States or an agency or an instrumentality thereof;
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(20)
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if the Securities of such series are to be issuable in definitive form (whether
upon original issue or upon exchange of a temporary Security of such series) only upon
receipt of certain certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or conditions;
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(21)
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if the Securities of or within the series are to be issued upon the exercise of
debt warrants, the time, manner and place for such Securities to be authenticated and
delivered;
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(22)
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whether and under what circumstances the Company will pay Additional Amounts as
contemplated by Section 1011 on the Securities of or within the series to any Holder
who is not a United States person (including any modification to the definition of such
term) in respect of any tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
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(23)
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the obligation, if any, of the Company to permit the Securities of such series
to be converted into or exchanged for common stock of the Company or other securities
or property of the Company and the terms and conditions upon
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which such conversion or exchange shall be effected (including, without limitation,
the initial conversion price or rate, the conversion or exchange period, any
adjustment of the applicable conversion or exchange price or rate and any
requirements relative to the reservation of such shares for purposes of conversion or
exchange);
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(24)
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if convertible or exchangeable, any applicable limitations on the ownership or
transferability of the securities or property into which such Securities are
convertible or exchangeable; and
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(25)
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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);
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(26)
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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 and the coupons appertaining to any Bearer Securities of such
series, if any, shall be substantially identical except, in the case of Registered or Bearer
Securities issued in global form, as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution or in any indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional Securities of such
series.
If any of the terms of the Securities of any series are established by action taken pursuant
to one or more Board Resolutions, a copy of an appropriate record of such action(s) 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 for authentication and delivery of such Securities.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as
contemplated by Section 301. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Securities of any series, the Registered
Securities of such series, other than Registered Securities issued in global form (which may be of
any denomination), shall be issuable in denominations of $1,000 and any integral multiple thereof
and the Bearer Securities of such series other than Bearer Securities issued in global form (which
may be of any denomination), shall be issuable in denominations of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf of the Company
by its President or a Vice President, under its corporate seal reproduced thereon, and attested by
its Secretary or an Assistant Secretary. The signature of any of these officers on the Securities
and coupons may be manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons appertaining thereto bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at the date of such
Securities or coupons.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series, together with any coupon appertaining thereto,
executed by the Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that, in connection with
its original issuance, no Bearer Security shall be mailed or otherwise delivered to any location in
the United States; and provided further that, unless otherwise specified with respect to any series
of Securities pursuant to Section 301, a Bearer Security may be delivered in connection with its
original issuance only if the Person entitled to receive such Bearer Security shall have furnished
a certificate to Euroclear or Clearstream, as the case may be, in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to any series of
Securities pursuant to Section 301, dated no earlier than 15 days prior to the earlier of the date
on which such Bearer Security is delivered and
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the date on which any temporary Security first becomes exchangeable for such Bearer Security in accordance with the terms of
such temporary Security and this Indenture. Except as permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have been detached and canceled.
If all of the Securities are not to be issued at one time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such
Securities and determining the terms of particular Securities of such series, such as interest rate or formula, maturity date, date
of issuance and date from which interest shall accrue. In authenticating Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 612 and TIA
Section 315(a) through 315(d)) shall be fully protected in conclusively relying upon:
(i) an Opinion of Counsel complying with Section 102 and stating that:
(a) the form or forms of such Securities and any coupons have been, or will have been upon compliance with such
procedures as may be specified therein, established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been, or will have been upon compliance with such procedures as may
be specified therein, established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining thereto, when completed pursuant to such procedures as may be
specified therein, and executed and delivered by the Company to the Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights
generally and to general equitable principles and to such other matters as may be specified therein; and
(ii) an Officers’ Certificate complying with Section 102 and stating that all conditions precedent provided for in this
Indenture relating to the issuance of such Securities have been, or will have been upon compliance with such procedures as
may be specified therein, complied with and that, to the best of the knowledge of the signers of such certificate, no Event
of Default with respect to such Securities shall have occurred and be continuing.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all the Securities of any series are not to
be issued at one time, it shall not be necessary to deliver a Company Order, an Opinion of Counsel or an Officers’ Certificate
otherwise required pursuant to the preceding paragraph at the time of issuance of each Security of such series, but such order,
opinion and certificate, with appropriate modifications to cover such future issuances, shall be delivered at or before the time of
issuance of the first Security of such series.
The Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee’s own rights, duties, obligations or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication and each Bearer Security shall be dated as of the date
specified as contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security or the Security to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture. 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 together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued or sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
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SECTION 304. Temporary Securities.
(a) 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, in registered form, or, if authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions, substitutions and other variations as the
officers of the Company executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which shall be exchanged in
accordance with Section 304(b) or as otherwise provided in or pursuant to a Board Resolution), 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 (accompanied by
any non-matured coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of definitive Securities of
the same series of authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and provided further that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. 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.
(b) Unless otherwise provided as contemplated in Section 301, this Section 304(b) shall
govern the exchange of temporary Securities issued in global form other than through the facilities
of DTC. If any such temporary Security is issued in global form, then such temporary global
Security shall, unless otherwise provided therein, be delivered to the London office of a
depository or common depository (the “Common Depository”), for the benefit of Euroclear and
Clearstream.
Without unnecessary delay but in any event not later than the date specified in, or determined
pursuant to the terms of, any such temporary global Security (the “Exchange Date”), the Company
shall deliver to the Trustee definitive Securities, in an aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company. On or after the
Exchange Date, such temporary global Security shall be surrendered by the Common Depository to the
Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in
part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such temporary global Security, an equal aggregate principal amount of
definitive Securities of or within the same series of authorized denominations and of like tenor as
the portion of such temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in bearer form, registered
form, permanent global bearer form or permanent global registered form, or any combination thereof,
as specified as contemplated by Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; provided, however, that, unless otherwise specified in
such temporary global Security, upon such presentation by the Common Depository, such temporary
global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security, if any, held for its
account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Clearstream as to the portion of such temporary global Security, if any, held for its
account then to be exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and provided further that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest of a beneficial
owner of Securities of a series in a temporary global Security shall be exchanged for definitive
Securities of the same series and of like tenor following the Exchange Date when the account holder
instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in
Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section
301), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall
be available from the offices of Euroclear or Clearstream, the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the beneficial owners
of such temporary global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person takes delivery of
such definitive Securities in
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person at the offices of Euroclear or Clearstream. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euroclear or Clearstream on such Interest Payment Date upon
delivery by Euroclear or Clearstream to the Trustee of a certificate or certificates in the form
set forth in Exhibit A-2 to this Indenture (or in such other forms as may be established pursuant
to Section 301), for credit without further interest on or after such Interest Payment Date to the
respective accounts of Persons who are the beneficial owners of such temporary global Security on
such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may
be, a certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior
to such Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such other
forms as may be established pursuant to Section 301). Notwithstanding anything to the contrary
herein contained, the certifications made pursuant to this paragraph shall satisfy the
certification requirements of the preceding two paragraphs of this Section 304(b) and of the third
paragraph of Section 303 of this Indenture and the interests of the Persons who are the beneficial
owners of the temporary global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor on the Exchange Date or
the date of certification if such date occurs after the Exchange Date, without further act or deed
by such beneficial owners. Except as otherwise provided in this paragraph, no payments of
principal or interest owing with respect to a beneficial interest in a temporary global Security
will be made unless and until such interest in such temporary global Security shall have been
exchanged for an interest in a definitive Security. Any interest so received by Euroclear or
Clearstream and not paid as herein provided shall be returned to the Trustee prior to the
expiration of two years after such Interest Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency of the Company in a Place of Payment a register for each series of Securities (the
registers maintained in such office or in any such office or agency of the Company in a Place of
Payment being herein sometimes referred to collectively as the “Security Register”) in which,
subject to such reasonable regulations as it or the Security Registrar may prescribe, the Company
shall provide for the registration of Registered Securities and of transfers of Registered
Securities. The Security Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. The Trustee, at its Corporate Trust Office,
is hereby initially appointed “Security Registrar” for the purpose of registering Registered
Securities and transfers of Registered Securities on such Security Register as herein provided. In
the event that the Trustee shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times and to require that a copy of the Security Register
in written form be delivered to it from time to time as reasonably requested. Subject to the
provisions of this Section 305, upon surrender for registration of transfer of any Registered
Security of any series at any 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 Registered Securities of the same series,
of any authorized denominations and of a like aggregate principal amount, bearing a number not
contemporaneously outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the Holder, Registered
Securities of any series (not in global form) may be exchanged for other Registered Securities of
the same series, of any authorized denomination or denominations and of a like aggregate principal
amount, containing identical terms and provisions, upon surrender of the Registered Securities to
be exchanged at any such office or agency. Whenever any such Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is entitled to receive.
Unless otherwise specified with respect to any series of Securities as contemplated by Section 301,
Bearer Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if
there is furnished to them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of
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such Security shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case
may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will
be payable only to the Holder of such coupon when due in accordance with the provisions of this
Indenture. 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.
Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301,
any permanent global Security shall be exchangeable only as provided in this paragraph. If the
depository for any permanent global Security is DTC, then, unless the terms of such global Security
expressly permit such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only to a nominee of
DTC, or by a nominee of DTC to DTC, or to a successor to DTC for such global Security selected or
approved by the Company or to a nominee of such successor to DTC. If at any time DTC notifies the
Company that it is unwilling or unable to continue as depository for the applicable global Security
or Securities or if at any time DTC ceases to be a clearing agency registered under the Exchange
Act if so required by applicable law or regulation, the Company shall appoint a successor
depository with respect to such global Security or Securities. If (x) a successor depository for
such global Security or Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such unwillingness, inability or ineligibility, (y) an
Event of Default has occurred and is continuing and the beneficial owners representing a majority
in principal amount of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depository for such global Security or Securities or (z)
the Company, in its sole discretion, determines at any time that all Outstanding Securities (but
not less than all) of any series issued or issuable in the form of one or more global Securities
shall no longer be represented by such global Security or Securities (provided, however, the
Company may not make such determination during the 40-day restricted period provided by Regulation
S under the Securities Act or during any other similar period during which the Securities must be
held in global form as may be required by the Securities Act), then the Company shall execute, and
the Trustee shall authenticate and deliver definitive Securities of like series, rank, tenor and
terms in definitive form in an aggregate principal amount equal to the principal amount of such
global Security or Securities. If any beneficial owner of an interest in a permanent global
Security is otherwise entitled to exchange such an interest for Securities of such series and of
like tenor and principal amount of another authorized form and denomination, as specified as
contemplated by Section 301 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in any event not later
than the earliest date on which such interest may be so exchanged, the Company shall execute, and
the Trustee shall authenticate and deliver definitive Securities in aggregate principal amount
equal to the principal amount of such beneficial owner’s interest in such permanent global
Security. On or after the earliest date on which such interests may be so exchanged, such permanent
global Security shall be surrendered for exchange by DTC or such other depository as shall be
specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such
purpose; provided, however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to be redeemed and ending on the
relevant Redemption Date if the Security for which exchange is requested may be among those
selected for redemption; and provided further that no Bearer Security delivered in exchange for a
portion of a permanent global Security shall be mailed or otherwise delivered to any location in
the United States. If a Registered Security is issued in exchange for any portion of a permanent
global Security after the close of business at the office or agency where such exchange occurs on
(i) any Regular Record Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted Interest, interest
or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered Security, but will be
payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global Security is payable in
accordance with the provisions of this Indenture.
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.
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Every Registered Security presented or surrendered for registration of transfer or for
exchange or redemption shall (if so required by the Company, the Trustee or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to 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, 306, 1107 or 1305 not involving any
transfer.
The Company or the Trustee, as applicable, shall not be required (i) to issue, register the
transfer of or exchange any Security if such Security may be among those selected for redemption
during a period beginning at the opening of business 15 days before selection of the Securities to
be redeemed under Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption
and (B) if such Securities are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if such Securities are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register
the transfer of or exchange any Registered Security so selected for redemption in whole or in part,
except, in the case of any Registered Security to be redeemed in part, the portion thereof not to
be redeemed, or (iii) to exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and like tenor, provided
that such Registered Security shall be simultaneously surrendered for redemption, or (iv) to issue
or to register the transfer or exchange of any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together with such security or indemnity as may be
required by the Company or the Trustee to save each of them or any agent of either of them
harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons corresponding to
the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or coupon, 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 actual notice to the Company or the Trustee that such Security or coupon
has been acquired by a bona fide purchaser, the Company shall execute and upon its written request
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security
or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon
appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated,
destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, with coupons corresponding to
coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided,
however, that payment of principal of (and premium or Make-Whole Amount, if any), any interest on
and any Additional Amounts with respect to Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United States and, unless
otherwise specified as contemplated by Section 301, any interest on Bearer Securities shall be
payable only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series with its coupons, if any, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security, or in exchange for a Security to which a destroyed,
lost or stolen coupon appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities
of that series and their coupons, if any, duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities in accordance with the
provisions of Section 301, interest on any Registered Security that 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 at the office or agency of the Company maintained for such
purpose pursuant to Section 1002; provided, however, that each installment of interest on any
Registered Security may at the Company’s option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to Section 308, to the
address of such Person as it appears on the Security Register or (ii) wire transfer to an account
maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any
series, payment of interest may be made, in the case of a Bearer Security, by transfer to an
account maintained by the payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent global Security will
provide that interest, if any, payable on any Interest Payment Date will be paid to DTC, Euroclear
and/or Clearstream, as the case may be, with respect to that portion of such permanent global
Security held for its account by DTC, Euroclear or Clearstream, as the case may be, for the purpose
of permitting such party to credit the interest received by it in respect of such permanent global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a Registered Security
of such series after the close of business (at an office or agency in a Place of Payment for such
series) on any Regular Record Date and before the opening of business (at such office or agency) on
the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in accordance with the provisions of
this Indenture.
Except as otherwise specified with respect to a series of Securities in accordance with the
provisions of section 301, any interest on any Registered Security of any series that 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 registered Holder thereof 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:
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(1)
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The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Registered 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 Registered Security of such series and the date of the proposed payment
(which shall not be less than 20 days after such notice is received by the Trustee), and
at the same time the Company shall deposit with the Trustee an amount of money in the
currency or currencies, currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) 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 on or 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 mailed, first- class postage
prepaid, to each Holder of Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such series (or their respective
Predecessor
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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). In case a Bearer
Security of any series is surrendered at the office or agency in a Place of Payment
for such series in exchange for a Registered Security of such series after the close
of business at such office or agency on any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will not be payable
on such proposed date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this Indenture.
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(2)
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The Company may make payment of any Defaulted Interest on the Registered
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 written 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.
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Subject to the foregoing provisions of this Section and Section 305, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
Subject to the provisions of Section 1402 and except as otherwise specified with respect to a
series of Securities in accordance with the provisions of section 301, in the case of any Security
which is converted or exchanged after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security, the principal of (or premium, if any,
on) which shall become due and payable, whether at a Stated Maturity or by declaration of
acceleration, call for redemption, or otherwise, 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 or exchange, 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 Security
which is converted or exchanged, interest whose Stated Maturity is after the date of conversion or
exchange of such Security shall not be payable.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered 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
Registered Security is registered as the owner of such Security for the purpose of receiving
payment of principal of (and premium or Make-Whole Amount, if any), and (subject to Sections 305
and 307) interest on and Additional Amounts with respect to, such Registered Security and for all
other purposes whatsoever, whether or not such Registered 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.
Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The
Company, the Trustee and any agent of the Company or the Trustee may treat the Holder of any Bearer
Security and the Holder of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing herein shall
prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished by any depository, as a Holder,
with respect to such global Security or impair, as between such depository and owners of beneficial
interests in such global Security, the operation of customary practices governing the exercise of
the rights of such depository (or its nominee) as Holder of such global Security.
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SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption, repayment at the option of the
Holder, registration of transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such
Securities and coupons and Securities and coupons surrendered directly to the Trustee for any such
purpose shall be promptly canceled 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 canceled by
the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. Canceled Securities and coupons held by the
Trustee shall be destroyed by the Trustee and, if required in writing by the Company, the Trustee
shall deliver a certificate of such destruction to the Company, unless by a Company Order the
Company directs their return to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with respect to Securities of any
series, interest on the Securities of each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use “CUSIP” numbers in notices of redemption or other related material as
a convenience to Holders; provided that any such notice or other related material may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of redemption or other related material and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
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 any
series of Securities specified in such Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities of such series herein expressly provided for and
any right to receive Additional Amounts, as provided in Section 1011), and the Trustee, upon
receipt of a Company Order, and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series, and any coupons
appertaining thereto, when
(1) either
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(A)
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all Securities of such series theretofore authenticated and delivered and all
coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer
Securities surrendered for exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, (iii) coupons appertaining
to Securities called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv) Securities and
coupons 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
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(B)
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all Securities of such series and, in the case of (i) or (ii) below, any coupons
appertaining thereto not theretofore delivered to the Trustee for cancellation
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(i)
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have become due and payable, or
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(ii)
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will become due and payable at their Stated Maturity within
one year, or
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(iii)
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if redeemable at the option of the Company, 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,
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and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an amount in the currency or
currencies, currency unit or units or composite currency or currencies in which the Securities of
such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities
and such coupons not theretofore delivered to the Trustee for cancellation, for principal (and
premium or Make-Whole Amount, if any) and interest, and any Additional Interest and Additional
Amounts with respect thereto, to the date of such deposit (in the case of Securities which have
become due and payable) or 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;
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 as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee and any predecessor Trustee under Section 606, the obligations of the
Company to any Authenticating Agent under Section 611 and, if money shall have been deposited with
and held by 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, shall survive.
In the event that there are Securities of two or more series outstanding hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction and discharge of this
Indenture only if requested in writing to do so with respect to Securities of a particular series
as to which it is Trustee and if the other conditions thereto are met.
SECTION 402. Application of Trust Funds.
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, the coupons 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 premium or Make-Whole Amount, if
any), and any interest and Additional Amounts for whose payment such money has been deposited with
or received by the Trustee, but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Subject to any modifications, additions or deletions relating to any series of Securities as
contemplated pursuant to Section 301, “Event of Default,” wherever used herein with respect to any
particular series of Securities, means any one of the following events (whatever the reason for
such Event of Default and whether or not 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):
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(1) default in the payment of any interest upon or any Additional Amounts payable in respect
of any Security of or within that series or of any coupon appertaining thereto, when such
interest, Additional Amounts or coupon 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 premium or Make- Whole Amount, if any, on)
any Security of that series when it becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of any
Security of that series; or
(4) default in the performance, or breach, of any covenant, agreement or warranty of the
Company in this Indenture with respect to any Security of that series (other than (i) a
covenant, agreement or warranty included in this Indenture solely for the benefit of a series
of Securities other than such series or (ii) a covenant, agreement or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 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
(5) default under a bond, debenture, note, mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any indebtedness for money borrowed
by the Company, having a principal amount outstanding in excess of $50,000,000 (other than
indebtedness which is non-recourse to the Company) under the terms of the instrument under
which the indebtedness is issued or secured, whether such indebtedness now exists or shall
hereafter be created, which default shall have resulted in such indebtedness being declared due
and payable prior to the date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having been rescinded or
annulled, or there being deposited with an unaffiliated depository, in trust, money in the
necessary amount to discharge such indebtedness, 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
and stating that such notice is a “Notice of Default” hereunder; or
(6) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case; or
(B) consents to the entry of an order for relief against it in an involuntary case; or
(C) consents to the appointment of a Custodian of it or for all or substantially all of
its property; or
(D) makes a general assignment for the benefit of its creditors; or
(E) makes an admission in writing of its inability to pay its debts generally as they
become due; or
(F) takes corporate action in furtherance of any such action; or
(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case; or
(B) appoints a Custodian of the Company or for all or substantially all of either of
its property, or
(C) orders the liquidation of the Company, and the order or decree remains unstayed and
in effect for 90 days; or
(D) adjudges the Company bankrupt or insolvent, or approves as properly filed a petition
seeking reorganization, arrangement, and adjustment or composition of or in respect of the
Company; or
(8) any other Event of Default provided with respect to Securities of that series.
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As used in this Section 501, the term “Bankruptcy Law” means Title 11, U.S. Code or any
similar Federal or state bankruptcy, insolvency, reorganization or other law for the relief of
debtors and the term “Custodian” means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
Unless otherwise specified in the Board Resolution or supplemental indenture relating to any
series of Securities, if an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of each such affected series (voting as a
single class) may declare the principal and premium, if any, (or, if any Securities are Original
Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified
in the terms thereof) of, and the Make-Whole Amount, if any, on, all the Securities of that series
to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if
given by the Holders), and upon any such declaration such principal (and premium, if any,) or
specified portion thereof 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 in the
currency, currency unit or composite currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the Securities of such
series):
(A) all overdue installments of interest on and any Additional Amounts payable in respect of
all Outstanding Securities of that series and any related coupons;
(B) the principal of (and premium or Make-Whole Amount, if any, on) any Outstanding
Securities of that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates borne by or provided for in such
Securities;
(C) to the extent that payment of such interest is lawful, interest upon overdue installments
of interest and any Additional Amounts at the rate or rates borne by or provided for 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 nonpayment
of the principal of (or premium or Make-Whole Amount, if any) or interest on 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 installment of interest or Additional Amounts, if
any, on any Security of any series and any related coupon when such interest or Additional
Amount becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium or Make-Whole Amount, if
any, on) any Security of any series at its Maturity, then the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the
Holders of such Securities of such series and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium or Make-Whole
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Amount, if any) and interest and Additional Amounts, with interest upon any overdue principal (and
premium or Make-Whole Amount, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest or Additional Amounts, if any, at
the rate or rates borne by or provided for 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 fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities of such series 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 of such series, wherever
situated.
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 and any related coupons by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities of
any series shall then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company for the payment of
overdue principal, premium or Make- Whole Amount, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise to take any and all actions authorized
under the TIA in order to have any claims of the Holders and the Trustee allowed in any such
proceeding and:
(i) to file and prove a claim for the whole amount, or such lesser amount as may be provided
for in the Securities of such series, of principal (and premium or Make-Whole Amount, if any) and
interest and Additional Amounts, if any, owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of Securities of such
series and coupons to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and
any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding; provided, however, that the Trustee may, only on behalf
of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors’ committee or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.
All rights of action and claims under this Indenture or any of the Securities or coupons may
be prosecuted and enforced by the Trustee without the possession of any of the Securities or
coupons or the production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities and coupons in respect of which such judgment has been
recovered.
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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 premium or Make-Whole Amount, if any) or interest and any Additional
Amounts, upon presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under
Section 606,
SECOND: To the payment of the amounts then due and unpaid upon the Securities and coupons for
principal (and premium or Make-Whole Amount, if any) and interest and any Additional Amounts
payable, 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 aggregate amounts due and payable on
such Securities and coupons for principal (and premium or Make-Whole Amount, if any), interest and
Additional Amounts, respectively, and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupon 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 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 such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium or Make-Whole
Amount, if any, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon
shall have the right which is absolute and unconditional to receive payment of the principal of
(and premium or Make-Whole Amount, if any) and (subject to Sections 305 and 307) interest on, and
any Additional Amounts in respect of, such Security or payment of such coupon on the respective due
dates expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date),
to convert or exchange such Securities in accordance with Article Sixteen and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired without the consent of
such Holder.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder, then and in every
such case the Company, the Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or coupons
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 Security or coupon to exercise any
right or remedy accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or any 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 of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of not less than 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,
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in personal liability or be
unduly prejudicial to the Holders of Securities of such series not joining therein (but the
Trustee shall have no obligation as to the determination of such undue prejudice).
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 and any related
coupons consent to the waiver of any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole Amount, if any) or interest
including Additional Interest on or Additional Amounts payable in respect of any Security of
such series or any related coupons, 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 Event of Default or impair any right
consequent thereon.
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SECTION 514. Waiver of Stay, Usury 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.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10%
in principal amount of the Outstanding Securities of the applicable series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest on or Additional Amounts payable with respect to any
Security on or after the respective Stated Maturities expressed in such Security (or in the case of
redemption, on or after the Redemption Date) or to enforce the right to convert or exchange any
Security in accordance with Article Sixteen.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder actually known to a Responsible Officer of the Trustee,
unless such default shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium or Make-Whole Amount, if any) or interest
on or any Additional Amounts with respect to any Security of such series, or in the payment of any
sinking fund installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the Holders of the
Securities and coupons of such series; and provided further that in the case of any default or
breach of the character specified in Section 501(4) with respect to the Securities and coupons of
such series, no such notice to Holders shall be given until at least 60 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 the Securities of
such series.
SECTION 602. Certain Duties, Responsibilities and Rights of Trustee.
(a) The Trustee’s duties and responsibilities under this Indenture shall be governed by the
Trust Indenture Act.
(b) Subject to the provisions of TIA Section 315(a) through 315(d):
(1) except during the continuance of an Event of Default, the Trustee shall perform only such
duties as are expressly undertaken by it to perform under this Indenture and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
(2) the Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or
parties;
(3) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order (other than delivery of any Security, together with any
coupons appertaining thereto, to the Trustee for
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authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by
a Board Resolution;
(4) 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;
(5) the Trustee may consult with counsel and as a condition to the taking, suffering or
omission of any action hereunder may demand an Opinion of Counsel, and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(6) 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 of Securities of any
series or any related coupons pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or direction;
(7) 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, coupon 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;
(8) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys, custodians or nominees and the
Trustee shall not be responsible for any misconduct or negligence on the part of any agent,
attorney, custodian or nominee appointed with due care by it hereunder;
(9) if the Trustee is acting as Paying Agent or Transfer Agent and Registrar hereunder, the
rights, indemnities and protections afforded to the Trustee pursuant to this Article VI shall
also be afforded to such Paying Agent or Transfer Agent and Registrar;
(10) the Trustee shall not be deemed to have knowledge of any Event of Default unless the
Trustee shall have received written notice, or a Responsible Officer charged with the
administration of this Indenture shall have actual knowledge of such Event of Default; and
(11) the Trustee shall not be liable for any action taken, suffered or omitted by it in good
faith and reasonably believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture. The Trustee shall not be required 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 indemnity satisfactory to it
against such risk or liability is not reasonably assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificate of
authentication, and in any coupons 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
or coupons, except that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations hereunder. 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 604. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating Agent or any other agent of
the Company, in its individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to Section 613 and TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
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SECTION 605. 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, or investment
of, any money received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for all services rendered
by it hereunder, including extraordinary services rendered in connection with or during the
continuation of a default 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) to reimburse each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by it in accordance with any
provision of this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent any such expense, disbursement
or advance may be attributable to its gross negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee and each of their respective
directors, officers, agents and employees for, and to hold each of them harmless against, any
loss, liability or expense, arising out of or in connection with the acceptance or
administration of the trust or trusts or the performance of its duties 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 except to the extent any such
loss, liability or expense may be attributable to its own gross negligence or bad faith.
As security for the performance of the obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of (or premium or
Make-Whole Amount, if any) or interest on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in connection with an Event of Default
described in Section 501(6) and (7), such expenses (including the fees and expenses of its counsel)
and the compensation for such services are intended to constitute expenses of administration under
any Bankruptcy Law.
The provisions of this Section shall survive the termination of this Indenture or the
resignation or removal of the Trustee.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible to act as Trustee
under TIA Section 310(a)(1) and shall have a combined capital and surplus of at least $50,000,000.
If such Trustee or Person publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such Trustee
or 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 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 608. Resignation and Removal; Appointment of Successor.
(a) 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 609.
(b) 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. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
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(c) 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.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of Section 613 or TIA Section 310(b)
after written request therefor by the Company or by any Holder of a Security who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and shall fail to resign after
written request therefor by the Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, 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, (i) the Company by or pursuant to a Board Resolution may remove the
Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA
Section 315(e), any Holder of a Security who has been a bona fide Holder of a Security 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
and the appointment of a successor Trustee or Trustees.
(e) 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 or pursuant to a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the requirements of
Section 609.
If, within one year after such resignation, removal or incapacity, 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, 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 of Securities and accepted appointment in the manner
hereinafter provided, any Holder of a Security 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 Securities of such series.
(f) 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 the Holders of Securities of such series in the
manner provided for notices to the Holders of Securities 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 609. Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee 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 request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(b) 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
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and deliver an indenture supplemental hereto, pursuant to Article Nine hereof, 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 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.
(c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the
case may be.
(d) 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 610. 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 of 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 or coupons 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 or coupons so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities or coupons. In case
any Securities or coupons shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in either its own name
or that of its predecessor Trustee, with the full force and effect which this Indenture provides
for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, 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
exchange, registration of transfer or partial redemption or repayment 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.
Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, a copy of which instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee’s 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 reasonably acceptable to the Company and, except as may otherwise be provided
pursuant to Section 301, shall at all times be a bank or trust company or corporation organized and
doing business and in good standing under the laws of the United States of America or of any State
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 authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid 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
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its combined capital and surplus as set forth in its most recent report of condition so
published. In case 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 further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign by giving written
notice of resignation to the Trustee for such series and to the Company. The Trustee for any series
of Securities may at any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, the Trustee for such series
may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall
give notice of such appointment to all Holders of Securities of or within the series with respect
to which such Authenticating Agent will serve in the manner set forth in Section 106. 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 herein. 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 including reimbursement of its reasonable expenses 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 or in lieu of the Trustee’s
certificate of authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
, as Trustee
By:
as Authenticating Agent
By:
Authorized Officer
SECTION 612. Certain Duties and Responsibilities.
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 indemnity satisfactory to it against such risk or liability is not
reasonably assured to it. 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 613. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of Section
310(b) 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, Section 310(b) of the
Trust Indenture Act and this Indenture. To the extent permitted by Section 310(b) of the Trust
Indenture 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. In case an Event
of Default shall occur and be continuing, the Trustee shall exercise such of its rights and powers
under the applicable 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 own affairs.
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SECTION 614. 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 TIA regarding the
collection of claims against the Company (or any such other obligor).
SECTION 615. United States Patriot Act.
The parties hereto acknowledge that, in order to comply with its obligations under the United
States Patriot Act, the Trustee, like all financial institutions, is required to obtain, verify,
and record certain information and documentation from the other parties hereto. Each of the
parties hereby agree that they will provide the Trustee with such information as it may request in
order for it to satisfy the requirements of the United States Patriot Act.
ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any Authenticating Agent nor
any Paying Agent nor any Security Registrar nor any director, officer, agent or employee of any of
them shall be held accountable by reason of the disclosure of any information as to the names and
addresses of the Holders of Securities or coupons in accordance with TIA Section 312, regardless of
the source from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after March 15 of each year commencing with the first March 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as of such March 15 if
and to the extent required by TIA Section 313(a).
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with the Commission and with the Company and, provided the Trustee has received written
notification by the Company that any Securities are listed on any stock exchange, with each stock
exchange upon which the Trustee has been so notified that such Securities are listed.
SECTION 703. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company is required to file the same with
the Commission, copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is
not required to file information, documents or reports pursuant to either of such Sections,
then it will file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13 of the Exchange
Act in respect of a security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in TIA Section 313(c), such
summaries of any information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) or (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
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SECTION 704. 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 the Regular Record Date for interest for each
series of Securities, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities of such series as of such Regular Record
Date, or if there is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, 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, provided, however, that, so long as
the Trustee is the Security Registrar, no such lists shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and Conveyances
Permitted Subject to Certain Conditions.
The Company may consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other Person, provided that in any such case, (i) either the
Company shall be the continuing entity, or the successor (if other than the Company) entity shall
be a Person organized and existing under the laws of the United States or a State thereof and such
successor entity shall expressly assume the due and punctual payment of the principal of (and
premium or Make-Whole Amount, if any) and any interest (including all Additional Amounts, if any,
payable pursuant to Section 1011) on all of the Securities, according to their tenor, the
conversion or exchange rights shall be provided for in accordance with Article Sixteen, if
applicable, or as otherwise specified pursuant to Section 301, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be performed by the
Company by supplemental indenture, complying with Article Nine hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such Person; (ii) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result thereof 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 the lapse of
time, or both, would become an Event of Default, shall have occurred and be continuing; and (iii)
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.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor entity, such successor entity shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein as the party of the first part,
and the predecessor entity, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor entity thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor entity, instead of the Company, and
subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and any Securities
which such successor entity thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All the Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such changes in
phraseology and form (but not in substance) may be made in the Securities thereafter to be issued
as may be appropriate.
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SECTION 803. Officers’ Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance permitted under Section 801 is also
subject to the condition that the Trustee receive an Officers’ Certificate and an Opinion of
Counsel to the effect that any such consolidation, merger, sale, lease or conveyance, and the
assumption by any successor entity, complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company, when authorized by
or pursuant to 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 reasonably 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; or
(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; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any
series of Securities (and if such Events of Default are to be for the benefit of less than all
series of Securities, stating that such Events of Default are expressly being included solely
for the benefit of such series); provided, however, that in respect of any such additional
Events of Default such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the right of the Holders of a
majority in aggregate principal amount of that or those series of Securities to which such
additional Events of Default apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to provide that Bearer
Securities may be registrable as to principal, to change or eliminate any restrictions on the
payment of principal of or any premium, Make- Whole Amount or Interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other authorized denominations or
to permit or facilitate the issuance of Securities in uncertificated form, provided that any
such action shall not adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of any
series of Securities, provided that any such addition, change or elimination shall (i) neither
(A) 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 (B) modify the rights of the
Holder of any such Security with respect to such provision; or (ii) become effective only when
there is no Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and any related coupons as
permitted by Sections 201 and 301, including the provisions and procedures relating to
Securities convertible into or exchangeable for other securities or property of the Company; or
(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; or
(9) to make provision with respect to the conversion or exchange rights of Holders pursuant to
the requirements of Article Sixteen, including providing for the conversion or exchange of the
securities into any security or property of the Company; or
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(10) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture or to make any other changes, provided that in each case,
such provisions shall not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(11) to close this Indenture with respect to the authentication and delivery of additional
series of Securities or to qualify, or maintain qualification of, this Indenture under the TIA;
or
(12) to supplement any of the provisions of this Indenture to such extent as shall be necessary
to permit or facilitate the defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided in each case that any such action shall not adversely
affect the interests of the Holders of Securities of such series and any related coupons 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 all
Outstanding Securities affected by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by or pursuant to 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 and any related coupons under
this Indenture; provided, however, that no such supplemental indenture shall, without the consent
of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium or Make- Whole Amount, if any,
on) or any installment of principal of or interest on, any Security; or reduce the principal
amount thereof or the rate or amount of interest thereon or any Additional Amounts payable in
respect thereof, or any premium or Make-Whole Amount payable upon the redemption thereof, or
change any obligation of the Company to pay Additional Amounts pursuant to Section 1011 (except
as contemplated by Section 801(i) and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security or Indexed Security or Make-Whole Amount, if
any, that would be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504,
or adversely affect any right of repayment at the option of the Holder of any Security, or
change any Place of Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies in which, the principal of any Security or any premium or
Make-Whole Amount or any Additional Amounts payable in respect thereof or the 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 or repayment at the option of
the Holder, on or after the Redemption Date or the Repayment Date, as the case may be); or
(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 with respect to such series (or compliance with
certain provisions of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of Section 1504 for quorum or
voting; or
(3) modify any of the provisions of this Section, Section 513 or Section 1012, except to
increase the required percentage to effect such action 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; or
(4) make any change that adversely affects the right to convert or exchange any Security as
provided in Article Sixteen or pursuant to Section 301 (except as permitted by Section 901(9))
or decrease the conversion or exchange rate or increase the conversion or exchange price of any
such Security.
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.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
40
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.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel and an Officers’ Certificate stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent to the execution of
such supplemental indenture have been complied with. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
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 and of any coupon appertaining thereto shall be bound thereby.
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 as then in effect.
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. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 902, the Company shall give notice thereof to the Holders of
each Outstanding Security affected, in the manner provided for in Section 106, setting forth in
general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if any, Interest and
Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of each series of Securities
that it will duly and punctually pay the principal of (and premium or Make-Whole Amount, if any)
and interest on and any Additional Amounts payable in respect of the Securities of that series in
accordance with the terms of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on and any Additional Amounts payable in respect of Bearer Securities
on or before Maturity, other than Additional Amounts, if any, payable as provided in Section 1011
in respect of principal of (or premium or Make-Whole Amount, if any, on) such a Security, shall be
payable only upon presentation and surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature. Unless otherwise specified with respect to
Securities of any series pursuant to Section 301, at the option of the Company, all payments of
principal may be paid by check to the registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security.
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SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issued as Registered Securities, the Company shall 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 or conversion, where Securities of that series
may be surrendered for registration of transfer or exchange, where Securities of that series may be
converted or exchanged in accordance with Article Sixteen, and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issued as Bearer Securities, the Company will maintain: (A) in the City
of Birmingham, Alabama or in the Borough of Manhattan, The City of New York, an office or agency
where any Registered Securities of that series may be presented or surrendered for payment or
conversion, where any Registered Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that series pursuant to
Section 1011) or conversion; provided, however, that if the Securities of that series are listed on
the Luxembourg Stock Exchange, The International Stock Exchange of the United Kingdom or any other
stock exchange located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in Luxembourg, London or any
other required city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange; and (C) subject to any laws or regulations
applicable thereto, in each Place of Payment for that series located outside the United States an
office or agency where any Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the location, and any
change in the location, of each 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, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any Additional Amounts payable
on Bearer Securities of that series pursuant to Section 1011) at the offices specified in the
Security, in London, England, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company hereby appoints the
Trustee its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment
of principal, premium, Make-Whole Amount or interest on or Additional Amounts in respect of Bearer
Securities shall be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account maintained with a bank
located in the United States; provided, however, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium and interest on any Bearer Security (including any
Additional Amounts or Make-Whole Amount payable on Securities of such series pursuant to Section
1011) shall be made at the office of the Company’s Paying Agent in the City Birmingham, Alabama or
the Borough of Manhattan, The City of New York, if (but only if) payment in Dollars of the full
amount of such principal, premium, interest, Additional Amounts or Make-Whole Amount, as the case
may be, at all offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture, is illegal or effectively precluded by exchange controls
or other similar restrictions.
The Company may from time to time designate one or more other offices or agencies where the
Securities of one or more series and related coupons, if any, may be presented or surrendered for
any or all of 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 accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be
payable in a Foreign Currency, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of Securities, or as so
required, at least one Exchange Rate Agent.
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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 any
Securities and any related coupons, it will, on or before each due date of the principal of (and
premium or Make-Whole Amount, if any), or interest on or Additional Amounts in respect of, any of
the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the principal (and
premium or Make- Whole Amount, if any) or interest or Additional Amounts 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 and any
related coupons, it will, on or before each due date of the principal of (and premium or Make-Whole
Amount, if any), or interest on or Additional Amounts in respect of, any Securities of that series,
deposit with a Paying Agent a sum (in the currency or currencies, currency unit or units or
composite currency or currencies described in the preceding paragraph) sufficient to pay the
principal (and premium or Make-Whole Amount, if any) or interest or Additional Amounts, so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to such principal,
premium, Make-Whole Amount or interest or Additional Amounts and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee 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) hold all sums held by it for the payment of principal of (and premium or Make-Whole
Amount, if any) or interest on Securities or Additional Amounts in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give the Trustee written notice of any default by the Company (or any other obligor upon
the Securities) in the making of any such payment of principal (and premium or Make-Whole
Amount, if any) or interest or Additional Amounts; and
(3) at any time during the continuance of any such default upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series, 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 (and premium or Make-Whole Amount, if any) or interest on, or any Additional Amounts in respect
of, any Security of any series and remaining unclaimed for two years after such principal (and
premium or Make-Whole Amount, if any), interest or Additional Amounts has become due and payable
shall be paid to the Company upon 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 of such principal of (and premium or
Make-Whole Amount, if any) or interest on, or any Additional Amounts in respect of, any Security,
without interest thereon, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an Authorized
Newspaper, 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. [Reserved].
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect the existence, rights (charter and statutory) and
franchises of the Company and its Subsidiaries; provided, however, that the
43
Company shall not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries as a whole and that the loss thereof is not
disadvantageous in any material respect to the Holders of Securities of any series.
SECTION 1006. Maintenance of Properties.
The Company will cause all of its material properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that nothing in this Section
shall prevent the Company or any Subsidiary from selling or otherwise disposing of its properties
in the ordinary course of its business.
SECTION 1007. [Reserved].
SECTION 1008. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon it or
any Subsidiary or upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the Company shall not
be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1009. Provision of Financial Information.
Whether or not the Company is subject to Section 13 or 15(d) of the Exchange Act, the Company
will, to the extent permitted under the Exchange Act, file with the Commission the annual reports,
quarterly reports and other documents which the Company would have been required to file with the
Commission pursuant to such Section 13 or 15(d) (the “Financial Statements”) if the Company were so
subject, such documents to be filed with the Commission on or prior to the respective dates (the
“Required Filing Dates”) by which the Company would have been required so to file such documents if
the Company were so subject.
The Company will also in any event (x) within 15 days of each Required Filing Date file with
the Trustee copies of annual reports, quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Company were subject to such Sections, and (y) if filing such documents by the Company with
the Commission is not permitted under the Exchange Act, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies of such documents to any
prospective Holder.
SECTION 1010. Statement as to Compliance.
The Company will deliver to the Trustee within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company’s compliance with all conditions and
covenants under this Indenture and, in the event of any noncompliance, specifying such
noncompliance and the nature and status thereof. For purposes of this Section 1010, such
compliance shall be determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1011. Additional Amounts.
If any Securities of a series provide for the payment of Additional Amounts, the Company will
pay to the Holder of any Security of such series or any coupon appertaining thereto Additional
Amounts as may be specified as contemplated by Section 301. Whenever in this Indenture there is
mentioned, in any context except in the case of Section 502(1), the payment of the principal of or
any premium, Make-Whole Amount or interest on, or in respect of, any Security of any series or
payment of any related coupon or the net proceeds received on the sale or exchange of any Security
of any series, such mention shall be deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established pursuant to Section 301 to the extent that, in
such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such
terms and express mention of the
44
payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed
as excluding Additional Amounts in those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the Securities of a series
provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment
Date with respect to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and any premium is made),
and at least 10 days prior to each date of payment of principal and any premium or Make-Whole
Amount or interest if there has been any change with respect to the matters set forth in the
below-mentioned Officers’ Certificate, the Company will furnish the Trustee and the Company’s
principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’ Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of
and any premium or interest on the Securities of that series shall be made to Holders of Securities
of that series or any related coupons who are not United States persons without withholding for or
on account of any tax, assessment or other governmental charge described in the Securities of or
within the series. If any such withholding shall be required, then such Officers’ Certificate shall
specify by country the amount, if any, required to be withheld on such payments to such Holders of
Securities of that series or related coupons and the Company will pay to the Trustee or such Paying
Agent the Additional Amounts, if any, required by the terms of such Securities. In the event that
the Trustee or any Paying Agent, as the case may be, shall not so receive the above mentioned
certificate, then the Trustee or such Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have received a certificate
advising otherwise and (ii) to make all payments of principal and interest with respect to the
Securities of a series or related coupons without withholding or deductions until otherwise
advised. The Company covenants to indemnify the Trustee and any Paying Agent and their respective
officers, directors, employees and agents for, and to hold them harmless against, any loss,
liability or expense (including legal fees and expenses) reasonably incurred without gross
negligence or bad faith on their part arising out of or in connection with actions taken or omitted
by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section or in
reliance on the Company’s not furnishing such an Officers’ Certificate.
SECTION 1012. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Sections 1004 to 1009, inclusive, and with any other term, provision or
condition with respect to the Securities of any series specified in accordance with Section 301
(except any such term, provision or condition which could not be amended without the consent of
Holders of all Securities of such Series pursuant to Section 902), if before or after the time for
such compliance the Holders of at least a majority in principal amount of all outstanding
Securities of such series, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver shall extend to or
affect such covenant 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 1013. Sale or Issuance of Capital Stock of Principal Subsidiary Bank.
Except as otherwise specified with respect to a series of Securities in accordance with the
provisions of Section 301 and subject to the provisions of Article Eight, the Company shall not,
directly or indirectly:
(a)
sell, assign, pledge, transfer or otherwise dispose of, or permit to be issued, any shares of Capital Stock of a Principal Subsidiary Bank or any securities convertible into or
rights to subscribe to such Capital Stock, unless, after giving effect to (i) such sale, pledge,
assignment, transfer, disposition or issuance, and (ii) the conversion of such securities into,
or exercise of such rights with respect to, such Capital Stock, the Company will own, directly
or indirectly, at least 80% of the outstanding shares of Capital Stock of each class of Capital
Stock of such Principal Subsidiary Bank; or
(b) pay any dividend in Capital Stock of a Principal Subsidiary Bank or make any other
distribution in Capital Stock of a Principal Subsidiary Bank, unless the Principal Subsidiary
Bank to which the transaction relates, after obtaining any necessary regulatory approvals,
unconditionally guarantees payment of the principal and any premium and interest on the
Securities;
provided, however
, the foregoing shall not prohibit any of the following:
45
(1) any dispositions made by the Company or any Principal Subsidiary Bank of the Company
(A) acting in a fiduciary capacity for any Person other than the Company or any Principal
Subsidiary Bank of the Company or (B) to the Company or any Wholly-owned Subsidiary;
(2) the merger or consolidation of a Principal Subsidiary Bank with and into another
Principal Subsidiary Bank;
(3) the sale, assignment, pledge, transfer or other dispositions of shares of Voting Stock
of a Principal Subsidiary Bank made by the Company or any Subsidiary of the Company if:
(A) the sale, assignment, pledge, transfer or other disposition is made, in the minimum
amount required by law, to any Person for the purpose of the qualification of such Person to
serve as a director; or
(B) the sale, assignment, pledge, transfer or other disposition is made in compliance
with an order of a court or regulatory authority of competent jurisdiction or as a condition
imposed by any such court or regulatory authority to the acquisition by the Company or any
Principal Subsidiary Bank of the Company, directly or indirectly, of any other Person; or
(C) the sale, assignment, pledge, transfer or other disposition of Voting Stock or any
other securities convertible into or rights to subscribe to Voting Stock of a Principal
Subsidiary Bank, so long as:
(i) any such transaction is made for fair market value as determined by the Board
of Directors or the board of directors of the Principal Subsidiary Bank of the Company
disposing of such Voting Stock or other securities or rights, and
(ii) after giving effect to such transaction and to any potential dilution, the
Company and its Wholly-owned Subsidiaries will own, directly or indirectly, at least 80%
of the Voting Stock of such Principal Subsidiary Bank;
(4) any Principal Subsidiary Bank from selling additional shares of Voting Stock to its
shareholders at any price, so long as immediately after such sale, the Company owns, directly or
indirectly, at least as great a percentage of the Voting Stock of such Principal Subsidiary Bank
as the Company owned prior to such sale of additional shares; or
(5) a pledge made or a lien created to secure loans or other extensions of credit by a
Principal Subsidiary Bank subject to Section 23A of the Federal Reserve Act.
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 Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities, including coupons, if any shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the
Company of less than all of the Securities or coupons, if any, of any series, the Company shall, at
least 45 days prior to the giving of the notice of redemption in Section 1104 (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee, in writing, of such Redemption
Date, Redemption Price and of the principal amount of Securities of such series 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 or pursuant to
an election of the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers’ Certificate and Opinion of
Counsel evidencing compliance with such restriction or condition.
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SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the particular Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series issued on such date with the same terms not
previously called for redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum authorized
denomination for Securities of that series. The Trustee shall make the selection from Securities of
the series that are Outstanding and that have not previously been called for redemption and may
provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities, including coupons, if any, of that series or any integral multiple thereof).
If any Security selected for partial redemption is converted in part before termination of the
conversion or exchange right with respect to the portion of the Security so selected, the converted
or exchanged portion of such Security shall be deemed (so far as may be) to be the portion selected
for redemption. Securities which have been converted or exchanged during a selection of Securities
to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection. In
any case where more than one Security is registered in the same name, the Trustee in its discretion
may treat the aggregate principal amount so registered as if it were represented by one Security.
The Trustee shall promptly notify the Company and the Security Registrar (if other than
itself) in writing of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106, not less than 30
days nor more than 60 days prior to the Redemption Date, unless a shorter period is specified by
the terms of such series established pursuant to Section 301, to each Holder of Securities to be
redeemed, but failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of any other such
Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not the Holder receives
the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption Date payable as provided in
Section 1106, if any, and Additional Amounts, if any;
(3) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amount) of the particular
Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a charge, a new
Security or Securities of authorized denominations for the principal amount thereof remaining
unredeemed;
(5) that on the Redemption Date the Redemption Price and accrued interest to the Redemption
Date payable as provided in Section 1106, if any, will become due and payable upon each such
Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon
shall cease to accrue on and after said date;
47
(6) the Place or Places of Payment where such Securities, together in the case of Bearer
Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date,
are to be surrendered for payment of the Redemption Price and accrued interest, if any, or for
conversion or exchange;
(7) that the redemption is for a sinking fund, if such is the case;
(8) that, unless otherwise specified in such notice, Bearer Securities of any series, if any,
surrendered for redemption must be accompanied by all coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing coupon or coupons will be deducted from
the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee for
such series and any Paying Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed and any Registered Securities of
such series are not to be redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to the redemption on this Redemption Date pursuant to Section
305 or otherwise, the last date, as determined by the Company, on which such exchanges may be
made;
(10) the CUSIP number of such Security, if any, provided that neither the Company nor the
Trustee shall have any responsibility for any such CUSIP number; and
(11) if applicable, that a Holder of Securities who desires to convert or exchange Securities
to be redeemed must satisfy the requirements for conversion or exchange contained in such
Securities, the then existing conversion or exchange price or rate and the date and time when
the option to convert or exchange shall expire and the place or places where such Securities
may be surrendered for conversion.
Notice of redemption of Securities to be redeemed shall be given by the Company or, at the
Company’s written request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or 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, which it may not do in the case
of a sinking fund payment under Article Twelve, segregate and hold in trust as provided in Section
1003) an amount of money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof 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 in the
currency or currencies, currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall, if the same were interest-bearing, cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security for redemption in accordance with said notice,
together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or
agency located outside the United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and provided further that except as otherwise provided with respect to
Securities convertible or exchangeable into other securities or property of the Company,
installments of interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant
coupons maturing after the Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all
48
such missing coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of
which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that interest (and any Additional Amounts)
represented by coupons shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those coupons. If any Security
called for redemption shall not be so paid upon surrender thereof for redemption, the principal,
(and premium or Make-Whole Amount, if any) shall, until paid, bear interest from the Redemption
Date at the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the provisions of this Article
or of Article Twelve) 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, 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 a series except as otherwise specified as contemplated by Section 301 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of such Securities of any series is herein referred
to as an “optional sinking fund payment.” If provided for by the terms of any Securities of any
series, the cash amount of any mandatory 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 any series as provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Securities of a series, (1) deliver Outstanding Securities of such series (other
than any previously called for redemption) together in the case of any Bearer Securities of such
series with all unmatured coupons appertaining thereto and (2) apply as a credit Securities of such
series which have been redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, as provided for by the terms of such Securities, or which have otherwise
been acquired by the Company; provided that such Securities so delivered or applied as a credit
have not been previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such mandatory 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 mandatory sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the Securities of such
series) and the portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202, and the optional amount, if any, to be added in
cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers’
49
Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount therein specified.
Not more than 60 nor less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities 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 Section
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section 301) in accordance
with this Article.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal
to the principal amount thereon, together with interest, if any, thereof accrued to the Repayment
Date specified in or pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will 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 in the currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the principal (or, if
so provided by the terms of the Securities of any series, a percentage of the principal) of, and
(except if the Repayment Date shall be an Interest Payment Date) accrued interest on, all the
Securities or portion thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the Holders thereof will
contain an “Option to Elect Repayment” form on the reverse of such Securities. In order for any
Security to be repaid at the option of the Holder, the Trustee must receive at the Place of Payment
therefor specified in the terms of such Security (or at such other place or places of which the
Company shall from time to time notify the Holders of such Securities) not earlier than 60 days nor
later than 30 days prior to the Repayment Date (1) the Security so providing for such repayment
together with the “Option to Elect Repayment” form on the reverse thereof duly completed by the
Holder (or by the Holder’s attorney duly authorized in writing) or (2) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. (“NASD”), or a commercial bank or trust company in the
United States setting forth the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP number, if any, or a
description of the tenor and terms of the Security, a statement that the option to elect repayment
is being exercised thereby and a guarantee that the Security to be repaid, together with the duly
completed form entitled “Option to Elect Repayment” on the reverse of the Security, will be
received by the Trustee not later than the third Business Day after the date of such telegram,
telex, facsimile transmission or letter; provided, however, that such telegram, telex, facsimile
transmission or letter shall only be effective if such Security and form duly completed are
received by the Trustee by such third Business Day. If less than the entire principal amount of
such Security is to be repaid in accordance with the terms of such Security, the principal amount
of such Security to be repaid, in increments of the minimum denomination for Securities of such
series, and the denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized denomination of
Securities of or within the series of which such Security to be repaid is a part. Except as
otherwise may be provided by the terms of any Security providing for
repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall
be irrevocable unless waived by the Company.
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SECTION 1304. When Securities Presented for Repayment Become Due and Payable.
If Securities of any series providing for repayment at the option of the Holders thereof shall
have been surrendered as provided in this Article and as provided by or pursuant to the terms of
such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Company shall default in the payment of such
Securities on such Repayment Date) such Securities shall, if the same were interest bearing, cease
to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if any, appertaining
thereto maturing after the Repayment Date, the principal amount of such security so to be repaid
shall be paid by the Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the Repayment Date shall be
payable only at an office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified pursuant to Section 301, only upon presentation
and surrender of such coupons; and provided further that, in the case of Registered Securities,
installments of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall
be payable (but without interest thereon, unless the Company shall default in the payment thereof)
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 Bearer Security surrendered for repayment shall not be accompanied by all appurtenant
coupons maturing after the Repayment Date, such Security may be paid after deducting from the
amount payable therefor as provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons. If the principal amount of any Security surrendered
for repayment shall not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid, bear interest from the
Repayment Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge and at the expense of the Company, a new Registered Security or Securities
of the same series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company’s Option to Effect Defeasance or Covenant
Defeasance.
If, pursuant to Section 301, provision is made for either or both of (a) defeasance of the
Securities of or within a series under Section 1402 or (b) covenant defeasance of the Securities of
or within a series under Section 1403 to be applicable to the Securities of any series, then the
provisions of such Section or Sections, as the case may be, together with the other provisions of
this Article (with such modifications thereto as may be specified pursuant to Section 301 with
respect to any Securities), shall be applicable to such Securities and any coupons appertaining
thereto, and the Company may at its option by Board Resolution at any time, with respect to such
Securities and any coupons appertaining thereto, elect to defease such Outstanding Securities and
coupons appertaining thereto pursuant to Section 1402 (if applicable) or Section 1403 (if
applicable) upon compliance with the conditions set forth below in this Article.
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SECTION 1402. Defeasance and Discharge.
Upon the Company’s exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons appertaining thereto on and
after the date the conditions set forth in Section 1404 are satisfied (hereinafter, “defeasance”).
For this purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be “Outstanding” only for the purposes of
Section 1405 and the other Sections of this Indenture referred to in clauses (A) and (B) below, and
to have satisfied all of its other obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of such Outstanding Securities and any coupons
appertaining thereto to receive, solely from the trust fund described in Section 1404 and as more
fully set forth in such Section, payments in respect of the principal of (and premium or Make-Whole
Amount, if any) and interest, if any, on such Securities and any coupons appertaining thereto when
such payments are due, (B) the Company’s obligations with respect to such Securities under Sections
305, 306, 1002 and 1003 and with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 1011, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article. Subject to compliance with this Article Fourteen,
the Company may exercise its option under this Section notwithstanding the prior exercise of its
option under Section 1403 with respect to such Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance.
Upon the Company’s exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be released from its obligations under Article
8, Sections 1005 to 1010, inclusive and Section 1013, and, if specified pursuant to Section 301,
its obligations under any other covenant, with respect to such Outstanding Securities and any
coupons appertaining thereto on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, “covenant defeasance”), and such Securities and any coupons appertaining
thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in
connection with Article 8, Sections 1005 to 1010, inclusive and Section 1013, or such other
covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding Securities and any
coupons appertaining thereto, 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 Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or such other covenant to any
other provision herein or in any other document and such omission to comply shall not constitute a
default or an Event of Default under Section 501(4) or 501(8) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or Section 1403 to any
Outstanding Securities of or within a series and any coupons appertaining thereto:
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(a)
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The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of Section 607 who shall agree to comply with
the provisions of this Article Fourteen applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit in which such Securities
and any coupons appertaining thereto are then specified as payable at Stated Maturity, or (2)
if Securities of such series are not subject to early repayment at the option of the Holders,
Government Obligations applicable to such Securities and coupons appertaining thereto
(determined on the basis of the currency, currencies or currency unit in which such
Securities and coupons appertaining thereto are then specified as payable at Stated Maturity)
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 of principal of (and premium or Make- Whole Amount, if any) and interest, if any, and
Additional Amounts, if any, on such Securities and any coupons appertaining thereto, money in
an amount, or (3) a combination thereof in an amount, sufficient, without consideration of
any reinvestment of such principal and interest, 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 other
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qualifying trustee) to pay and discharge, (i) the principal of (and premium or Make-Whole
Amount, if any) and interest, if any, and Additional Amounts, if any on such Outstanding
Securities and any coupons appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to such Outstanding Securities and any coupons appertaining
thereto on the day on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining thereto; provided, that
the Trustee shall have been irrevocably instructed to apply such money or the proceeds of
such Government Obligations to said payments with respect to such Securities. Before such a
deposit, the Company may give to the Trustee, in accordance with Section 1102 hereof, a
notice of its election to redeem all or any portion of such Outstanding Securities at a
future date in accordance with the terms of the Securities of such series and Article Eleven
hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
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(b)
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Such defeasance or covenant defeasance shall not result in a breach or violation of,
or constitute a breach or default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound (and shall not cause
the Trustee to have a conflicting interest pursuant to Section 310(b) of the TIA with
respect to any Security of the Company).
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(c)
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No Event of Default or event which with notice or lapse of time or both would become
an Event of Default with respect to such Securities and any coupons appertaining thereto
shall have occurred and be continuing on the date of such deposit or, insofar as Sections
501(6) and 501(7) are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
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(d)
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In the case of an election under Section 1402, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance had not
occurred.
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(e)
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In the case of an election under Section 1403, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding
Securities and any coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred.
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(f)
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The Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the defeasance under
Section 1402 or the covenant defeasance under Section 1403 (as the case may be) have been
complied with and an Opinion of Counsel to the effect that either (i) as a result of a
deposit pursuant to subsection (a) above and the related exercise of the Company’s option
under Section 1402 or Section 1403 (as the case may be) registration is not required under
the Investment Company Act of 1940, as amended, by the Company, with respect to the trust
funds representing such deposit or by the Trustee for such trust funds or (ii) all
necessary registrations under said Act have been effected.
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(g)
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After the 91st day following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally.
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(h)
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Notwithstanding any other provisions of this Section, such defeasance or covenant
defeasance shall be effected in compliance with any additional or substitute terms,
conditions or limitations which may be imposed on the Company in connection therewith
pursuant to Section 301.
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SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and Government
Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1405, the “Trustee”) pursuant to Section 1404 in respect of any Outstanding Securities of
any
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series and any coupons appertaining thereto shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and any coupons appertaining thereto 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 Holders of such Securities and
any coupons appertaining thereto of all sums due and to become due thereon in respect of principal
(and premium or Make-Whole Amount, if any) and interest and Additional Amounts, if any, but such
money need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a
deposit referred to in Section 1404(a) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect pursuant to Section 301 or the terms of
such Security to receive payment in a currency or currency unit other than that in which the
deposit pursuant to Section 1404(a) has been made in respect of such Security, or (b) a Conversion
Event occurs in respect of the currency or currency unit in which the deposit pursuant to Section
1404(a) has been made, the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium or Make-Whole Amount, if any), and interest, if any, on
such Security as the same becomes due out of the proceeds yielded by converting (from time to time
as specified below in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such Security becomes payable
as a result of such election or Conversion Event based on the applicable market exchange rate for
such currency or currency unit in effect on the second Business Day prior to each payment date,
except, with respect to a Conversion Event, for such currency or currency unit in effect (as nearly
as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the Government Obligations deposited pursuant to Section 1404 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 such Outstanding Securities and any coupons
appertaining thereto.
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 Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1404 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 a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
SECTION 1406. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or the Government Obligations,
as the case may be, 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, such Securities and any
coupons appertaining thereto from which the Company has been discharged or released pursuant to
Section 1402 or 1403 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 or Government Obligations, as the case may be, held in trust pursuant
to Section 1405 with respect to such Securities and any coupons appertaining
thereto 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 or coupons to receive such payment from the money or Government Obligations, as the case
may be, so held in trust.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
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SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place in the City of
Birmingham, Alabama or the Borough of Manhattan, The City of New York, or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section 106, not less
than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least
10% in principal amount of the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such series for any purpose specified
in Section 1501, by written request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be, may determine the
time and the place in the City of Birmingham, Alabama or the Borough of Manhattan, The City of
New York, or in London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall
be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote
at such meeting and their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a
series shall constitute a quorum for a meeting of Holders of Securities of such series; provided,
however, that if any action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a series, the Persons entitled to
vote such specified percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after the time appointed
for any such meeting, the meeting shall, if convened at the request of Holders of Securities of
such series, be dissolved. In any other case the meeting may be adjourned for a period of not less
than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting.
In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior
to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 1502(a), except that such notice need be given only once not
less than five (5) days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum. Except as limited by the proviso to Section 902, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be
adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of Securities of such
series and the related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any action is to be taken at
a meeting of Holders of Securities of any series with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage in principal amount
of all Outstanding Securities affected thereby, or of the Holders of such series and one or more
additional series:
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(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such series that vote in favor of
such request, demand, authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand, authorization, direction,
notice, consent, waiver or other action has been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities of a series in
regard to proof of the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall be proved in the
manner specified in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the Person executing the proxy witnessed
or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the proof specified
in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders of Securities
as provided in Section 1502(b), in which case the Company or the Holders of Securities of or
within the series calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one
vote for each $1,000 principal amount of the Outstanding Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a
Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to Section 1502 at
which a quorum is present may be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such series represented at the
meeting, and the meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the Holders of
Securities of such series or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders.
Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in principal amount of
the Holders of any or all series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of Holders in person or by agent
duly appointed in
56
writing; and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee. Proof of execution of
any instrument or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Sections 315(a) through 315(d) of the TIA) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Article.
SECTION 1508. Proof of Execution of Instruments.
Subject to TIA Sections 315(a) through 315(d), the execution of any instrument by a Holder or
his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.
ARTICLE SIXTEEN
CONVERSION OR EXCHANGE OF SECURITIES
SECTION 1601. Applicability of Article.
The provisions of this Article shall be applicable to the Securities of any series which are
convertible or exchangeable for other securities or property (including securities of other
issuers, provided that such securities are registered under Section 12 of the Exchange Act and such
issuer is then eligible to use Form S-3 (or any successor form) for a primary offering of its
securities) of the Company, except as otherwise specified as contemplated by Section 301 for the
Securities of such series.
SECTION 1602. Election to Exchange; Notice to Trustee and Holders.
The election of the Company to exchange any Securities shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for such Securities. On
or prior to the seventh Business Day prior to Maturity of the Securities, the Company shall provide
written notice to the Holders of record of the Securities and to the Trustee and will publish a
notice in a daily newspaper of national circulation stating whether the Company has made such
election.
SECTION 1603. No Fractional Shares.
No fractional shares of securities shall be delivered upon exchanges of Securities of any
series. If more than one Security shall be surrendered for exchange at one time by the same
Holder, the number of full shares which shall be delivered upon exchange shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions thereof to the
extent permitted hereby) so surrendered. If, except for the provisions of this Section 1603, any
Holder of a Security or Securities would be entitled to a fractional share of a security upon the
exchange of such Security or Securities, or specified portions thereof, the Company shall pay to
such Holder an amount in cash equal to the current market value of such fractional share computed
on the basis of an average Closing Price of such security. The “Closing Price” of any security on
any date of determination means, (i) if such security is listed or admitted to unlisted trading
privileges on a national securities exchange, the last reported sale price regular way on such
exchange, (ii) if such security is not at the time so listed, as reported by the NASDAQ National
Market, or (iii) if such security is not at the time so listed or reported or admitted to unlisted
trading privileges on a national securities exchange, the average of the bid and asked prices of
such security in the over-the-counter market, as reported by the National Quotation Bureau,
Incorporated or similar organization if the National Quotation Bureau, Incorporated is no longer
reporting such information, or if not so available, the market price as determined by a nationally
recognized independent investment banking firm retained for this purpose by the Company.
SECTION 1604. Adjustment of Exchange Rate.
The exchange rate of Securities of any series that is exchangeable for other securities or
property (including securities of other issuers, provided that such securities are registered under
Section 12 of the Exchange Act and such issuer is then eligible to use Form S-3 (or any successor
form) for a primary offering of its securities) of the Company shall be adjusted for any stock
dividends, stock splits, reclassification, combinations or similar transactions or any
consolidation, merger or other reorganization event in accordance with the terms of the
supplemental indenture or Board Resolution setting forth the terms of the Securities of such
series.
Whenever the exchange rate is adjusted, the Company shall compute the adjusted exchange rate
in accordance with terms of the applicable Board Resolution or supplemental indenture and shall
prepare an Officers’ Certificate setting forth the adjusted exchange rate and showing in reasonable
detail the facts upon which such adjustment is based, and such certificate shall forthwith be filed
at each office or agency maintained for the purpose of exchange of Securities pursuant to Section
1002 and, if different, with the
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Trustee. The Company shall forthwith cause a notice setting forth the adjusted exchange rate
to be mailed, first class postage prepaid, to each Holder of Securities of such series at its
address appearing on the Security Register and to any exchange agent other than the Trustee.
SECTION 1605. Payment of Certain Taxes Upon Exchange.
The Company will pay any and all taxes that may be payable in respect of the transfer and
delivery of shares of other securities or property (including securities of other issuers, provided
that such securities are registered under Section 12 of the Exchange Act and such issuer is then
eligible to use Form S-3 (or any successor form) for a primary offering of its securities) of the
Company on exchange 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 delivery of shares of
securities in a name other than that of the Holder of the Security or Securities to be exchanged,
and no such transfer or delivery shall be made unless and until the person requesting such transfer
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 1606. Shares Free and Clear.
The Company hereby warrants that upon exchange of Securities of any series, the Holder of a
Security shall receive all rights held by the Company in such security for which such Security is
at such time exchangeable under this Article Sixteen, free and clear of any and all liens, claims,
charges and encumbrances other than, to the extent permitted by the terms of the Securities of such
series, any liens, claims, charges and encumbrances which may have been placed on any such security
by the prior owner thereof, prior to the time such security was acquired by the Company. Except as
provided in Section 1604, the Company will pay all taxes and charges with respect to the delivery
of such security delivered in exchange for Securities hereunder.
SECTION 1607. Cancellation of Security.
Upon receipt by the Trustee of Securities of any series delivered to it for exchange under
this Article Sixteen, the Trustee shall cancel and dispose of the same as provided in Section 309.
SECTION 1608. Duties of Trustee Regarding Exchange.
Neither the Trustee nor any exchange agent shall at any time be under any duty or
responsibility to any Holder of Securities of any series that is exchangeable into other securities
or property (including securities of other issuers, provided that such securities are registered
under Section 12 of the Exchange Act and such issuer is then eligible to use Form S-3 (or any
successor form) for a primary offering of its securities) of the Company to determine whether any
facts exist which may require any adjustment of the exchange rate, or with respect to the nature or
extent of any such adjustment when made, or with respect to the method employed, whether herein or
in any supplemental indenture, any resolutions of the Board of Directors or written instrument
executed by one or more officers of the Company provided to be employed in making the same. Neither
the Trustee nor any exchange agent shall be accountable with respect to the validity or value (or
the kind or amount) of any securities or property (including securities of other issuers, provided
that such securities are registered under Section 12 of the Exchange Act and such issuer is then
eligible to use Form S-3 (or any successor form) for a primary offering of its securities) of the
Company, or of any Securities and neither the Trustee nor any exchange agent makes any
representation with respect thereto. Subject to the provisions of Section 612, neither the Trustee
nor any exchange agent shall be responsible for any failure of the Company to issue, transfer or
deliver any stock certificates or other securities or property (including securities of other
issuers, provided that such securities are registered under Section 12 of the Exchange Act and such
issuer is then eligible to use Form S-3 (or any successor form) for a primary offering of its
securities) upon the surrender of any Security for the purpose of exchange or to comply with any of
the covenants of the Company contained in this Article Sixteen or in the applicable supplemental
indenture, resolutions of the Board of Directors or written instrument executed by one or more duly
authorized officers of the Company.
SECTION 1609. Repayment of Certain Funds Upon Exchange.
Any funds which at any time shall have been deposited by the Company or on its behalf with the
Trustee or any other paying agent for the purpose of paying the principal of, and premium, if any,
and interest, if any, on any of the Securities (including funds deposited for the sinking fund
referred to in Article Twelve hereof) and which shall not be required for such purposes because of
the exchange of such Securities as provided in this Article Sixteen shall after such exchange be
repaid to the Company by the Trustee upon the Company’s written request.
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SECTION 1610. Exercise of Conversion Privilege.
In order to exercise a conversion or exchange privilege, the Holder of a Security of a series
with such a privilege shall surrender such Security to the Company at the office or agency
maintained for that purpose pursuant to Section 1002, accompanied by written notice to the Company
that the Holder elects to convert or exchange such Security or a specified portion thereof. Such
notice shall also state, if different from the name or names (with address) in which the Securities
are registered, the name or names in which the securities or property (including securities of
other issuers, provided that such securities are registered under Section 12 of the Exchange Act
and such issuer is then eligible to use Form S-3 (or any successor form) for a primary offering of
its securities) of the Company which shall be issuable on such conversion or exchange shall be
issued. Securities surrendered for conversion or exchange shall (if so required by the Company or
the Trustee) be duly endorsed by or accompanied by instruments of transfer in forms satisfactory to
the Company and the Trustee duly executed by the registered Holder or its attorney duly authorized
in writing; and Securities so surrendered for conversion or exchange during the period from the
close of business on any Regular Record Date to the opening of business on the next succeeding
Interest Payment Date (excluding Securities or portions thereof called for redemption during such
period) shall also 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 such Security then
being converted, and such interest shall be payable to such registered Holder notwithstanding the
conversion or exchange of such Security, subject to the provisions of Section 307 relating to the
payment of Defaulted Interest by the Company. As promptly as practicable after the receipt of such
notice and of any payment required 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 setting forth the terms of such series of Security, and the
surrender of such Security in accordance with such reasonable regulations as the Company may
prescribe, the Company shall issue and shall deliver, at the office or agency at which such
Security is surrendered, to such Holder or on its written order, securities or property (including
securities of other issuers, provided that such securities are registered under Section 12 of the
Exchange Act and such issuer is then eligible to use Form S-3 (or any successor form) for a primary
offering of its securities) of the Company issuable or deliverable upon the conversion or exchange
of such Security (or specified portion thereof), in accordance with the provisions of such Board
Resolution, Officers’ Certificate or supplemental indenture, and cash as provided therein in
respect of any fractional share of such common stock otherwise issuable upon such conversion or
exchange. Such conversion or exchange shall be deemed to have been effected immediately prior to
the close of business on the date on which such notice and such payment, if required, shall have
been received in proper order for conversion or exchange by the Company and such Security shall
have been surrendered as aforesaid (unless such Holder shall have so surrendered such Security and
shall have instructed the Company to effect the conversion or exchange on a particular date
following such surrender and such Holder shall be entitled to convert or exchange such Security on
such date, in which case such conversion or exchange shall be deemed to be effected immediately
prior to the close of business on such date) and at such time the rights of the Holder of such
Security as such Security Holder shall cease and the person or persons in whose name or names any
securities or property (including securities of other issuers, provided that such securities are
registered under Section 12 of the Exchange Act and such issuer is then eligible to use Form S-3
(or any successor form) for a primary offering of its securities) of the Company shall be issuable
or deliverable upon such conversion or exchange shall be deemed to have become the Holder or
Holders of record of the shares represented thereby. Except as set forth above and subject to the
final paragraph of Section 307, no payment or adjustment shall be made upon any conversion or
exchange on account of any interest accrued on the Securities surrendered for conversion or
exchange or on account of any interest or dividends on the securities or property (including
securities of other issuers, provided that such securities are registered under Section 12 of the
Exchange Act and such issuer is then eligible to use Form S-3 (or any successor form) for a primary
offering of its securities) of the Company issued or delivered upon such conversion or exchange.
In the case of any Security which is converted or exchanged in part only, upon such conversion
or exchange the Company shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Company, a new Security or Securities of the
same series, of authorized denominations, in aggregate principal amount equal to the unconverted or
unexchanged portion of such Security.
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SECTION 1611. Effect of Consolidation or Merger on Conversion Privilege.
In case of any consolidation of the Company with, or merger of the Company into or with any
other Person, or in case of any sale of all or substantially all of the assets of the Company, the
Company or the Person formed by such consolidation or the Person into which the Company shall have
been merged or the Person which shall have acquired 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 of any series that is convertible into common stock of the Company shall have the
right, which right shall be the exclusive conversion right thereafter available to said Holder
(until the expiration of the conversion right of such Security), to convert such Security into the
kind and amount of shares of stock or other securities or property (including cash) receivable upon
such consolidation, merger or sale 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 or sale, subject to compliance with the other provisions of this Indenture, such Security
and such supplemental indenture. Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided for in such
Security. The above provisions of this Section shall similarly apply to successive consolidations,
mergers or sales. It is expressly agreed and understood that anything in this Indenture to the
contrary notwithstanding, if, pursuant to such merger, consolidation or sale, holders of
outstanding shares of common stock of the Company do not receive shares of common stock of the
surviving corporation but receive other securities, cash or other property or any combination
thereof, Holders of Securities shall not have the right to thereafter convert their Securities into
common stock of the surviving corporation or the corporation which shall have acquired such assets,
but rather, shall have the right upon such conversion to receive the other securities, cash or
other property receivable by a holder of the number of shares of common stock of the Company into
which the Securities held by such holder might have been converted immediately prior to such
consolidation, merger or sale, all as more fully provided in the first sentence of this Section
1611. Anything in this Section 1611 to the contrary notwithstanding, the provisions of this Section
1611 shall not apply to a merger or consolidation of another corporation with or into the Company
pursuant to which both of the following conditions are applicable: (i) the Company is the surviving
corporation and (ii) the outstanding shares of common stock of the Company are not changed or
converted into any other securities or property (including cash) or changed in number or character
or reclassified pursuant to the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other securities or property
(including cash) into which Securities may properly be convertible after any such consolidation,
merger or sale, or as to the appropriate adjustments of the conversion prices applicable with
respect thereto, the Trustee shall be furnished with and may accept the certificate or opinion of
an independent certified public accountant with respect thereto; and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely thereon, and shall not be responsible
or accountable to any Holder of Securities for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said supplemental indenture.
This Indenture 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 Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their
respective officers hereunto duly authorized, all as of the day and year first above written.
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REGIONS FINANCIAL CORPORATION
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By:
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/s/ Kimberlea Wilson
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Name:
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Kimberlea Wilson
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Title:
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VP
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
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By:
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/s/ Yana Kalachikova
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Name:
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Yana Kalachikova
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Title:
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Associate
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60
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth below, the
above-captioned Securities held by you for our account (i) are owned by person(s) that are not
citizens or residents of the United States, domestic companies, or any estate or trust the income
of which is subject to United States federal income taxation regardless of its source (“United
States person(s)”), (ii) are owned by United States person(s) that are (a) foreign branches of
United States financial institutions (financial institutions, as defined in United States Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as “financial institutions”)
purchasing for their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on its own behalf or
through its agent, that you may advise Regions Financial Corporation or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii)
are owned by United States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in clause (i) or (ii)),
this is to further certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, “United States” means the United States of America (including the States and
the District of Columbia); and “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you
intend to submit your certification relating to the above- captioned Securities held by you for our
account in accordance with your operating procedures if any applicable statement herein is not
correct on such date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S. $]
of such interest in the
above-captioned Securities in respect of which we are not able to certify and as to which we
understand an exchange for an interest in a permanent global Security or an exchange for and
delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made
until we do so certify.
We understand that this certificate may be required in connection with certain tax legislation
in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
, 200___
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
(Authorized Signatory) Name: Title:
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM IN CONNECTION WITH THE EXCHANGE
OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we have received in
writing, by tested telex or by electronic transmission from each of the persons appearing in our
records as persons entitled to a portion of the principal amount set forth below (our “Member
Organizations”) substantially in the form attached hereto, as of the date hereof, [U.S.
$]
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic companies, domestic corporations
or any estate or trust the income of which is subject to United States Federal income taxation
regardless of its source (“United States person(s)”), (ii) is owned by United States person(s) that
are (a) foreign branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as “financial
institutions”) purchasing for their own account or for resale, or (b) United States person(s) who
acquired the Securities through foreign branches of United States financial institutions and who
hold the Securities through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such financial institution has agreed, on its own behalf or through
its agent, that we may advise Regions Financial Corporation or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further
effect, that financial institutions described in clause (iii) above (whether or not also described
in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, “United States” means the United States of America (including the States and
the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for exchange (or, if
relevant, collection of any interest) any portion of the temporary global Security representing the
above captioned Securities excepted in the above-referenced certificates of Member Organizations
and (ii) as of the date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith for exchange (or, if relevant, collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax legislation
in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
, 200___
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the
Exchange Date, as applicable]
[Euroclear Bank S.A./N.V.], as Operator of the
Euroclear System
[Clearstream Banking, société anonyme,]
By:
EXHIBIT B
FORM OF
EXCHANGE RATE OFFICER’S CERTIFICATE
The undersigned,
, an officer of Regions Financial Corporation,
a Delaware corporation (the “Company”), in accordance with the terms of the Indenture, dated as of
August 8, 2005, between the Company and Deutsche Bank Trust Company Americas, as Trustee (the
“Indenture”), and pursuant to authority delegated by the Board of Directors of the Company to the
undersigned in resolutions duly adopted by such Board at a meeting duly called and held on
,
(the “Resolutions”), does hereby certify that:
1. The [exchange rate] [applicable bid quotation] in respect of the payment to be made on
[insert date] by the Company with respect to its [insert title of security] is
.
2. The amount payable on [insert date] in respect of the Company’s [insert title of security]
is
per [$1,000] principal amount of such security.
IN WITNESS WHEREOF, I have hereunto signed by name.