1
EXHIBIT 4.3
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AMENDED AND RESTATED DECLARATION
OF TRUST
NATIONAL COMMERCE CAPITAL TRUST I
Dated as of March 27, 1997
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2
CROSS-REFERENCE TABLE*(1)
Section of Trust Indenture
Act of 1939, as amended
Section of Declaration
310(a)5.3(a) 310(c)
Inapplicable 311(c) Inapplicable 312(a)2.2(a)
312(b) 2.2(b) 3132.3 314(a) 2.4
314(b) Inapplicable 314(c) 2.5
314(d) Inapplicable 314(f)
Inapplicable 315(a) 3.9(b) 315(c)3.9(a) 315(d)
3.9(a) 316(a) Annex I 316(b)Annex I
316(c) 3.6(d)
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(1) * This Cross-Reference Table does not constitute part of the
Declaration and shall not affect the interpretation of any of its terms or
provisions.
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3
TABLE OF CONTENTS
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ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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Administrative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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Administrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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Authorized Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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Bankruptcy Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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Book Entry Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Business Trust Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Capital Securities Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Capital Security Beneficial Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Capital Security Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Clearing Agency Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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- ii -
4
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Common Securities Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Common Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Common Security Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Company Indemnified Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Debenture Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Definitive Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Direct Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Distribution Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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DTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Exchange Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Exchange Capital Security Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Exchange Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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5
Exchange Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Exchange Definitive Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Exchange Global Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Extension Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Federal Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Fiduciary Indemnified Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Global Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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IAI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Indemnified Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Indenture Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Initial Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Initial Capital Security Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
------------------------------------
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Initial Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Initial Definitive Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Initial Global Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Initial Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Institutional Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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6
Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Liquidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Liquidation Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Majority in liquidation amount of the Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Offering Memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Officers Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Payment Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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PORTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Property Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Pro Rata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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QIBs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Redemption/Distribution Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Registered Exchange Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Relevant Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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7
Restricted Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Restricted Definitive Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
----------------------------------------
Restricted Securities Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
----------------------------
Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Rule 144A Global Capital Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
---------------------------------
Rule 3a-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Rule 3a-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Securities Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Shelf Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Successor Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Successor Entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Successor Institutional Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Successor Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Super Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Tax Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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10% in liquidation amount of the Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Transfer Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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Treasury Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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Trust Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT: APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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SECTION 2.2 LISTS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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SECTION 2.3 REPORTS BY THE INSTITUTIONAL TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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SECTION 2.4 PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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SECTION 2.6 EVENTS OF DEFAULT; WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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SECTION 2.7 EVENTS OF DEFAULT; NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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ARTICLE III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ORGANIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.1 NAME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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SECTION 3.2 OFFICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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9
SECTION 3.3 PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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SECTION 3.4 AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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SECTION 3.5 TITLE TO PROPERTY OF THE TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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SECTION 3.6 POWERS AND DUTIES OF THE TRUSTEES AND THE ADMINISTRATORS . . . . . . . . . . . . . . . . . . . . . . . 24
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SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . 27
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SECTION 3.8 POWERS AND DUTIES OF THE INSTITUTIONAL TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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SECTION 3.10 CERTAIN RIGHTS OF INSTITUTIONAL TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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SECTION 3.11 DELAWARE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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SECTION 3.12 EXECUTION OF DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . 34
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SECTION 3.14 DURATION OF TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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SECTION 3.15 MERGERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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ARTICLE IV
SPONSOR
- viii -
10
SECTION 4.1 SPONSORS PURCHASE OF COMMON SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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SECTION 4.2 RESPONSIBILITIES OF THE SPONSOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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ARTICLE V
TRUSTEES
SECTION 5.1 NUMBER OF TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
------------------
SECTION 5.2 DELAWARE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
----------------
SECTION 5.3 INSTITUTIONAL TRUSTEE; ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
----------------------------------
SECTION 5.4 CERTAIN QUALIFICATIONS OF THE DELAWARE TRUSTEE GENERALLY . . . . . . . . . . . . . . . . . . . . . . . 38
--------------------------------------------------------
SECTION 5.5 ADMINISTRATORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
--------------
SECTION 5.6 DELAWARE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
----------------
SECTION 5.7 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES AND
----------------------------------------------------
ADMINISTRATORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
--------------
SECTION 5.8 VACANCIES AMONG TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
------------------------
SECTION 5.9 EFFECT OF VACANCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
-------------------
SECTION 5.10 MEETINGS OF THE TRUSTEES AND THE ADMINISTRATORS . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
-----------------------------------------------
SECTION 5.11 DELEGATION OF POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
-------------------
- ix -
11
SECTION 5.12 CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . 41
---------------------------------------------------
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
-------------
ARTICLE VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ISSUANCE OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.1 GENERAL PROVISIONS REGARDING SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
---------------------------------------
SECTION 7.2 PAYING AGENT, TRANSFER AGENT AND REGISTRAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
------------------------------------------
SECTION 7.3 FORM AND DATING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
---------------
SECTION 7.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . 45
-------------------------------------------------
SECTION 7.5 TEMPORARY SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
--------------------
SECTION 7.6 CANCELLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
------------
SECTION 7.7 CUSIP NUMBERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
-------------
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 DISSOLUTION AND TERMINATION OF TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
------------------------------------
- x -
12
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
-------
SECTION 9.2 TRANSFER PROCEDURES AND RESTRICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
------------------------------------
SECTION 9.3 DEEMED SECURITY HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
-----------------------
SECTION 9.4 NOTICES TO CLEARING AGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
--------------------------
SECTION 9.5 APPOINTMENT OF SUCCESSOR CLEARING AGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
----------------------------------------
ARTICLE X
LIMITATION OF LIABILITY OF
SECTION 10.1 LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
---------
SECTION 10.2 EXCULPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
-----------
SECTION 10.3 FIDUCIARY DUTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
--------------
SECTION 10.4 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
---------------
SECTION 10.5 OUTSIDE BUSINESSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
------------------
SECTION 10.6 COMPENSATION; FEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
-----------------
ARTICLE XI
- xi -
13
ACCOUNTING
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
-----------
SECTION 11.2 CERTAIN ACCOUNTING MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
--------------------------
SECTION 11.3 BANKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
-------
SECTION 11.4 WITHHOLDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
-----------
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
----------
SECTION 12.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN
--------------------------------------------------------
CONSENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
-------
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
SECTION 13.1 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE
-------------------------------------------------------
AND THE DELAWARE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
------------------------
SECTION 13.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . 64
--------------------------------------------------
ARTICLE XIV
MISCELLANEOUS
- xii -
14
SECTION 14.1 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
-------
SECTION 14.2 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
-------------
SECTION 14.3 INTENTION OF THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
------------------------
SECTION 14.4 HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
--------
SECTION 14.5 AGREEMENT NOT TO PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
-------------------------
SECTION 14.6 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
----------------------
SECTION 14.7 PARTIAL ENFORCEABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
----------------------
SECTION 14.8 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
------------
ANNEX I
TERMS OF
1. DESIGNATION AND NUMBER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
----------------------
2. DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
-------------
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-----------------------------------------
4. REDEMPTION AND DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
---------------------------
5. VOTING RIGHTS - CAPITAL SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
----------------------------------
- xiii -
15
6. VOTING RIGHTS - COMMON SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
---------------------------------
7. AMENDMENTS TO DECLARATION AND INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
---------------------------------------
8. PRO RATA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
--------
9. RANKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-------
10. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
------------------------------------------------
11. NO PREEMPTIVE RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
--------------------
12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-------------
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
EXHIBIT A-2
FORM OF EXCHANGE CAPITAL SECURITY CERTIFICATE
EXHIBIT A-3
FORM OF COMMON SECURITY CERTIFICATE
EXHIBIT B
FORM OF TRANSFEREE CERTIFICATE
EXHIBIT C
FORM OF TRANSFEREE CERTIFICATE
EXHIBIT D
SPECIMEN OF INITIAL DEBENTURE
- xiv -
16
EXHIBIT E
PURCHASE AGREEMENT
EXHIBIT F
REGISTRATION RIGHTS AGREEMENT
- xv -
17
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NATIONAL COMMERCE CAPITAL TRUST I
March 27, 1997
AMENDED AND RESTATED DECLARATION OF TRUST (Declaration) dated and
effective as of March 27, 1997, by the Trustees (as defined herein), the
Administrators (as defined herein) and the Sponsor (as defined herein) and by
the holders, from time to time, of undivided beneficial interests in the Trust
to be issued pursuant to this Declaration;
WHEREAS, the Trustees, the Administrators and the Sponsor established
National Commerce Capital Trust I (the Trust), a statutory business trust under
the Delaware Business Trust Act pursuant to a Declaration of Trust dated as of
March 14, 1997 (the Original Declaration), and a Certificate of Trust filed
with the Secretary of State of the State of Delaware on March 14, 1997, for the
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain debentures of the Debenture Issuer (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, all of the Trustees, the Administrators and the Sponsor, by
this Declaration, amend and restate each and every term and provision of the
Original Declaration to provide for, among other things, (i) the issuance and
sale of the Common Securities (as defined herein) by the Trust to the Sponsor,
(ii) the issuance and sale of the Capital Securities (as defined herein) by the
Trust pursuant to the Purchase Agreement and the Placement Agreement, (iii) the
acquisition by the Trust from the Sponsor of all of the right, title and
interest in the Debentures (as defined herein), and (iv) the appointment of the
Administrators; and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a statutory business trust under the Business Trust Act
(as defined herein) and that this Declaration constitutes the governing
instrument of such statutory business trust, the Trustees declare that all
assets contributed to the Trust will be held in trust for the benefit of the
holders, from time to time, of the securities representing undivided beneficial
interests in the assets of the Trust issued hereunder, subject to the
provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
- 1 -
18
SECTION 1.1 Definitions.
Except as otherwise expressly provided for or unless the context
otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to the Declaration or this Declaration are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits
to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act (as defined herein)
has the same meaning when used in this Declaration unless otherwise defined in
this Declaration or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
(g) the words include, includes and including shall be deemed to be
followed by the phrase without limitation;
(h) all accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally accepted
accounting principles as in effect at the time of computation; and
(i) the words herein, hereof and hereunder and other words of
similar import refer to this Declaration as a whole and not to any particular
Article, Section or other subdivision.
Administrative Action has the meaning set forth in paragraph 4(b) of
Annex I.
Administrators means each of Xxx X. Xxxxxxx, Xxxxx X. Xxxxxx and
Xxxxxx X. Xxxxx, solely in such Persons capacity as Administrator of the Trust
created and continued hereunder and not in such Persons individual capacity, or
such Administrators successor in interest in such capacity, or any successor
appointed as herein provided.
Affiliate has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
- 2 -
19
Authorized Officer of a Person means any Person that is authorized to
bind such Person.
Bankruptcy Event means, with respect to any Person:
(a) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of such Person in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or for
any substantial part of its property, or the ordering of the winding-up or
liquidation of its affairs and such decree or order shall remain unstayed and
in effect for a period of 90 consecutive days; or
(b) the commencement by such Person of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, the consent by such Person to the entry of an order for relief in an
involuntary case under any such law, the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of such Person of
any substantial part of its property, the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person
generally to pay its debts as they become due.
Bankruptcy Laws has the meaning set forth in Section 14.5.
Book Entry Interest means a beneficial interest in one or more Global
Capital Securities, ownership and transfers of which shall be maintained and
made through book entries by a Clearing Agency as described in Section 9.2.
Business Day means any day other than Saturday, Sunday or any other
day on which banking institutions in New York City (in the State of New York)
or Memphis (in the State of Tennessee) are permitted or required by any
applicable any applicable law to close.
Business Trust Act means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code 3801 et seq., as it may be amended from time to time, or any
successor legislation.
Capital Securities Guarantee means the guarantee agreement to be
dated as of March 27, 1997, of the Sponsor in respect of the Capital
Securities.
Capital Securities means the Initial Capital Securities and the
Exchange Capital Securities.
Capital Security Beneficial Owner means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing
- 3 -
20
Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing
Agency).
Capital Security Certificate means a Certificate representing a
Capital Security substantially in the form of Exhibit A-1.
Certificate means any certificate evidencing Securities.
Clearing Agency means an organization registered as a Clearing Agency
pursuant to Section 17A of the Exchange Act that is acting as depositary for
the Capital Securities and in whose name or in the name of a nominee of that
organization shall be registered a Global Capital Security and which shall
undertake to effect book entry transfers and pledges of the Capital Securities.
Clearing Agency Participant means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with
the Clearing Agency.
Closing Date means the Closing Date under the Purchase Agreement.
Code means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
Commission means the Securities and Exchange Commission.
Common Securities has the meaning set forth in Section 7.1(a).
Common Securities Guarantee means the guarantee agreement to be dated
as of March 27, 1997 of the Sponsor in respect of the Common Securities.
Common Security has the meaning set forth in Section 7.1(a).
Common Security Certificate means a definitive Certificate in fully
registered form representing a Common Security substantially in the form of
Exhibit A-3.
Company Indemnified Person means (a) any Administrator; (b) any
Affiliate of any Administrator; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Administrator;
or (d) any officer, employee or agent of the Trust or its Affiliates.
Corporate Trust Office means the office of the Institutional Trustee
at which the corporate trust business of the Institutional Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Declaration is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx,
Xxx Xxxx, Xxx Xxxx 00000.
- 4 -
21
Covered Person means: (a) any Administrator, officer, director,
shareholder, partner, member, representative, employee or agent of (i) the
Trust or (ii) the Trusts Affiliates; and (b) any Holder of Securities.
Debenture Issuer means National Commerce Bancorporation, a Tennessee
corporation, in its capacity as issuer of the Debentures under the Indenture.
Debenture Trustee means The Bank of New York, a New York banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
Debentures means the Initial Debentures and the Exchange Debentures.
Definitive Capital Securities means Initial Definitive Capital
Securities and Exchange Definitive Capital Securities.
Delaware Trustee has the meaning set forth in Section 5.2.
Depositary means, with respect to the Capital Securities, DTC, or
another Clearing Agency.
Direct Action has the meaning set forth in Section 3.8(e).
Distribution means a distribution payable to Holders of Securities in
accordance with Section 6.1.
Distribution Payment Date has the meaning set forth in paragraph 2(b)
of Annex I.
DTC means The Depository Trust Company, New York, New York, the
initial Clearing Agency.
Event of Default in respect of the Securities means an Indenture
Event of Default has occurred and is continuing in respect of the Debentures.
Exchange Act means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
Exchange Capital Securities has the meaning set forth in Section
7.1(a).
Exchange Capital Security Certificate means a Certificate
representing an Exchange Capital Security substantially in the form of Exhibit
A-2.
Exchange Certificate means a Common Security Certificate or an
Exchange Capital Security Certificate.
- 5 -
22
Exchange Debentures means the Floating Rate Junior Subordinated
Deferrable Interest Debentures due 2027 to be issued by the Debenture Issuer
under the Indenture in exchange for the Initial Debentures pursuant to the
Registration Rights Agreement.
Exchange Definitive Capital Securities means any Exchange Securities
in definitive form issued by the Trust.
Exchange Global Capital Securities means any Exchange Capital
Securities in global form issued by the Trust.
Exchange Securities means Common Securities and Exchange Capital
Securities.
Extension Period has the meaning set forth in paragraph 2(b) of Annex
I.
Federal Reserve has the meaning set forth in paragraph 3 of Annex I.
Fiduciary Indemnified Person shall mean the Institutional Trustee,
the Delaware Trustee, any Affiliate of the Institutional Trustee or the
Delaware Trustee, and any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents of the Institutional
Trustee and the Delaware Trustee.
Global Capital Securities means any Initial Global Capital Securities
and Exchange Global Capital Securities.
Holder means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
IAI has the meaning set forth in Section 7.3(c).
Indemnified Person means a Company Indemnified Person or a Fiduciary
Indemnified Person.
Indenture means the Indenture dated as of March 27, 1997, among the
Debenture Issuer and the Debenture Trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued.
Indenture Event of Default means an Event of Default as defined in
the Indenture.
Initial Capital Securities has the meaning set forth in Section
7.1(a).
Initial Capital Security Certificate means a certificate representing
an Initial Capital Security substantially in the form of Exhibit A-1.
- 6 -
23
Initial Certificate means a Common Security Certificate or an Initial
Capital Security Certificate.
Initial Debentures means the Floating Rate Junior Subordinated
Deferrable Interest Debentures due 2027 to be issued by the Debenture Issuer
under the Indenture on the Closing Date to be held by the Institutional Trustee
or, upon a dissolution of the Trust, the Depositary or the Holder, as the case
may be, a specimen certificate for such series of Debentures being Exhibit D.
Initial Definitive Capital Securities means any Restricted Definitive
Capital Security and any other Initial Capital Securities in definitive form
issued by the Trust.
Initial Global Capital Securities means any Rule 144A Global Security
and any other Initial Capital Securities in global form issued by the Trust.
Initial Securities means the Common Securities and the Initial
Capital Securities.
Institutional Trustee means the Trustee meeting the eligibility
requirements set forth in Section 5.3
interest means any interest due on the Debentures including any
Compounded Interest, Special Interest and Additional Interest (as each such
term is defined in the Indenture).
Investment Company means an investment company as defined in the
Investment Company Act.
Investment Company Act means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
Legal Action has the meaning set forth in Section 3.8(e).
Liquidation has the meaning set forth in paragraph 3 of Annex I.
Liquidation Distribution has the meaning set forth in paragraph 3 of
Annex I.
Majority in liquidation amount of the Securities means Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holders of outstanding Capital Securities or Holders of outstanding
Common Securities voting separately as a class, who are the record owners of
more than 50% of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
- 7 -
24
Offering Memorandum has the meaning set forth in Section 4.2.
Officers Certificates means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers
Certificate delivered with respect to compliance with a condition or covenant
provided for it in this Declaration shall include:
(a) a statement that each officer signing the Certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officers opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
Paying Agent has the meaning specified in Section 7.2.
Payment Amount has the meaning set forth in Section 6.1.
Person means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
Placement Agreement means the Placement Agreement entered into among
the Sponsor, the Trust and NBC Capital Markets, Inc., dated as of March 20,
1997, for the placement of up to $3 million aggregate stated liquidation amount
of Capital Securities.
PORTAL has the meaning set forth in Section 3.6(a)(i).
Property Account has the meaning set forth in Section 3.8(c).
Pro Rata has the meaning set forth in paragraph 8 of Annex I.
Purchase Agreement means the Purchase Agreement for the offering and
sale of Capital Securities in the form of Exhibit E.
QIBs has the meaning set forth in Section 7.3.
- 8 -
25
Quorum means a majority of the Administrators or, if there are only
two Administrators, both of them.
Redemption/Distribution Notice has the meaning set forth in paragraph
4(g) of Annex I.
Redemption Price has the meaning set forth in paragraph 4(a) of Annex
I.
Registered Exchange Offer has the meaning as set forth in the
Registration Rights Agreement.
Registrar has the meaning set forth in Section 7.2.
Registration Rights Agreement means the Registration Rights Agreement
relating to the Securities in the form of Exhibit F.
Relevant Trustee has the meaning set forth in Section 5.7(a).
Responsible Officer means, with respect to the Institutional Trustee,
any officer within the Corporate Trust Office of the Institutional Trustee,
including any vice-president, any assistant vice-president, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or other
officer of the Corporate Trust Office of the Institutional Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officers
knowledge of and familiarity with the particular subject.
Restricted Capital Securities means Rule 144A Global Capital
Securities and Restricted Definitive Capital Securities.
Restricted Definitive Capital Securities has the meaning set forth in
Section 7.3(c).
Restricted Securities Legend has the meaning set forth in Section
9.2(g).
Rule 144A means Rule 144A under the Securities Act.
Rule 144A Global Capital Security has the meaning set forth in
Section 7.3(a).
Rule 3a-5 means Rule 3a-5 under the Investment Company Act.
Rule 3a-7 means Rule 3a-7 under the Investment Company Act.
Securities means the Common Securities and the Capital Securities.
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Securities Act means the Securities Act of 1933, as amended from time
to time or any successor legislation.
Securities Guarantees means the Common Securities Guarantee and the
Capital Securities Guarantee.
Shelf Registration Statement has the meaning set forth in the
Registration Rights Agreement.
Sponsor means National Commerce Bancorporation, a Tennessee
corporation, or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.
Successor Delaware Trustee has the meaning set forth in Section
5.7(b).
Successor Entity has the meaning set forth in Section 3.15(b).
Successor Institutional Trustee has the meaning set forth in Section
5.7(b).
Successor Securities has the meaning set forth in Section 3.15(b).
Super Majority has the meaning set forth in Section 2.6(a)(ii).
Tax Event has the meaning set forth in paragraph 4(b) of Annex I.
10% in liquidation amount of the Securities means Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holders of outstanding Capital Securities or Holders of outstanding
Common Securities voting separately as a class, who are the record owners of
10% or more of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
Transfer Agent has the meaning set forth in Section 7.2.
Treasury Regulations means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
Trustee or Trustees means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance
with the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees
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in accordance with the provisions hereof, and references herein to a Trustee or
the Trustees shall refer to such Person or Persons solely in their capacity as
trustees hereunder.
Trust Indenture Act means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
Trust Property means (a) the Debentures, (b) any cash on deposit in,
or owing to, the Property Account and (c) all proceeds and rights in respect of
the foregoing and any other property and assets for the time being held or
deemed to be held by the Institutional Trustee pursuant to the trusts of this
Declaration.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to
the extent applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrators on behalf of the
Trust shall provide the Institutional Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the
Institutional Trustee may reasonably require, of the names and addresses of the
Holders of the Securities (List of Holders) as of such record date, provided
that neither the Sponsor nor the Administrators on behalf of the Trust shall be
obligated to provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the Institutional
Trustee by the Sponsor and the Administrators on behalf of the Trust, and (ii)
at any other time, within 30 days of receipt by the Trust of a written request
therefor, a List of Holders as of a date no more than 14 days before such List
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of Holders is given to the Institutional Trustee. The Institutional Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
its capacity as Paying Agent (if acting in such capacity), provided that the
Institutional Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations
under 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee. Within 60 days
after April 15 of each year, the Institutional Trustee shall provide to the
Holders of the Capital Securities such reports as are required by 313 of the
Trust Indenture Act, if any, in the form and in the manner provided by 313 of
the Trust Indenture Act. The Institutional Trustee shall also comply with the
requirements of 313(d) of the Trust Indenture Act. The Sponsor shall promptly
notify the Institutional Trustee in writing when the Capital Securities are
listed on any stock exchange.
SECTION 2.4 Periodic Reports to Institutional Trustee. Each of the
Sponsor and the Administrators on behalf of the Trust shall provide to the
Institutional Trustee such documents, reports and information as required by
314 (if any) and the compliance certificate required by 314(a) of the Trust
Indenture Act in the form, in the manner and at the times required by 314 of
the Trust Indenture Act and an Officers Certificate as to its compliance with
all conditions and covenants under this Declaration, on an annual basis on or
before 120 days after the end of each fiscal year of the Sponsor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent. Each
of the Sponsor and the Administrators on behalf of the Trust shall provide to
the Institutional Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration that relate to any of the
matters set forth in 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to 314(c)(1) may be given
in the form of an Officers Certificate.
SECTION 2.6 Events of Default; Waiver. (a) The Holders of a
Majority in liquidation amount of the Capital Securities may, by vote or
consent, on behalf of the Holders of all of the Capital Securities, waive any
past Event of Default in respect of the Capital Securities and its
consequences, provided that, if the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the Event of Default
under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in principal amount of the holders of the Debentures (a Super
Majority) to be waived under the Indenture, such Event of Default
under this Declaration may only be waived by the vote or consent of
the Holders of at least the proportion in liquidation amount of the
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Capital Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
316(a)(1)(B) of the Trust Indenture Act and such 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such Indenture Event of Default shall cease to exist, and any Event of Default
with respect to the Capital Securities arising therefrom shall be deemed to
have been cured, for every purpose of this Declaration, but no such waiver
shall extend to any subsequent or other default or Event of Default with
respect to the Capital Securities or impair any right consequent thereon. Any
waiver by the Holders of the Capital Securities of an Event of Default with
respect to the Capital Securities shall also be deemed to constitute a waiver
by the Holders of the Common Securities of any such Event of Default with
respect to the Common Securities for all purposes of this Declaration without
any other act, vote, or consent of the Holders of the Common Securities.
The Holders of a Majority in liquidation amount of the Capital
Securities will have the right to direct the time, method and place of
conducting any proceeding of any remedy available to the Institutional Trustee
or to direct the exercise of any trust or power conferred upon the
Institutional Trustee, including the right to direct the Institutional Trustee
to exercise the remedies available to it as holder of the Debentures.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote or consent, on behalf of the Holders of all of the
Common Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that if the underlying Indenture
Event of Default:
(i) is not waivable under the Indenture, the Event of Default
under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived under the Indenture, such Event of Default under this
Declaration may only be waived by the vote or consent of the Holders
of at least the proportion in liquidation amount of the Common
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding; provided,
further, that, notwithstanding (i) or (ii) above, each Holder of the
Common Securities will be deemed to have waived any such Indenture
Event of Default and all Events of Default with respect to the Common
Securities and their consequences until all Events of Default with
respect to the Capital Securities have been cured, waived or
otherwise eliminated, and until such Events of Default have been so
cured, waived or otherwise eliminated, the Institutional Trustee will
be deemed to be acting solely on behalf of the Holders of the Capital
Securities and only the Holders of the Capital Securities will have
the right to direct the Institutional Trustee in accordance with the
terms of the Securities. The foregoing provisions of this Section
2.6(b) shall be in
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lieu of 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as
permitted in the Trust Indenture Act. Subject to the foregoing
provisions in this Section 2.6(b), upon such waiver, any such
Indenture Event of Default shall cease to exist, and any Event of
Default with respect to the Common Securities arising therefrom shall
be deemed to have been cured, for every purpose of this Declaration,
but no such waiver shall extend to any subsequent or other default or
Event of Default with respect to the Common Securities or impair any
right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Institutional
Trustee at the direction of the Holders of the Capital Securities constitutes a
waiver of the corresponding Event of Default under this Declaration. The
foregoing provisions of this Section 2.6(c) shall be in lieu of 316(a)(1)(B)
of the Trust Indenture Act and 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act.
SECTION 2.7 Events of Default; Notice. (a) The Institutional
Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the
Securities, notices of all defaults with respect to the Securities actually
known to a Responsible Officer of the Institutional Trustee, unless such
defaults have been cured before the giving of such notice (the term defaults
for the purposes of this Section 2.7(a) being hereby defined to be an Indenture
Event of Default, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided, however,
that, except for a default in the payment of principal of (or premium, if any)
or interest on any of the Debentures, the Institutional Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Institutional Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Capital Securities.
(b) The Institutional Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 5.01(a) and 5.01(b) of the
Indenture; or
(ii) any default as to which the Institutional Trustee shall
have received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the
Declaration shall have actual knowledge.
ARTICLE III
ORGANIZATION
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SECTION 3.1 Name. The Trust is named National Commerce Capital
Trust I, as such name may be modified from time to time by the Administrators
following written notice to the Holders of the Securities, in which name the
Administrators and the Trustees may engage in the transactions contemplated
hereby, make and execute contracts and other instruments on behalf of the Trust
and xxx and be sued. The Trusts activities may be conducted under the name of
the Trust or any other name deemed advisable by the Administrators.
SECTION 3.2 Office. The address of the principal office of the
Trust is c/o National Commerce Bancorporation, Xxx Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxx 00000. On ten Business Days written notice to the Holders of the
Securities, the Administrators may designate another principal office. The
address of the Delaware Trustee in the State of Delaware is The Bank of New
York (Delaware), Xxxxx Xxxx Center, Xxxxx 000, Xxxxxx, XX 00000, Attention:
Corporate Trust Administration, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the Holders and the
Sponsor.
SECTION 3.3 Purpose. The exclusive purposes and functions of the
Trust are (a) to issue and sell the Securities representing undivided
beneficial interests in the assets of the Trust, (b) to use the proceeds from
such sale to acquire the Debentures and (c) except as otherwise limited herein,
to engage in only those other activities necessary or incidental thereto, which
may include engaging in the Exchange Offer. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 3.4 Authority. Except as specifically provided in this
Declaration, the Institutional Trustee shall have exclusive and complete
authority to carry out the purposes of the Trust. An action taken by a Trustee
in accordance with its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Trustees acting on behalf of the Trust, no Person
shall be required to inquire into the authority of the Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this Declaration. The
Administrators shall have only those ministerial duties set forth herein with
respect to accomplishing the purposes of the Trust and are not intended to be
trustees or fiduciaries with respect to the Trust or the Holders. The
Institutional Trustee shall have the right, but shall not be obligated except
as provided in Section 3.6, to perform those duties assigned to the
Administrators.
SECTION 3.5 Title to Property of the Trust. Except as provided in
Section 3.8 with respect to the Debentures and the Property Account or as
otherwise provided in this Declaration, legal title to all assets of the Trust
shall be vested in the Trust. The Holders shall not have legal title to any
part of the assets of the Trust, but shall have an undivided beneficial
interest in the assets of the Trust.
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SECTION 3.6 Powers and Duties of the Trustees and the
Administrators. (a) The Trustees and the Administrators shall conduct the
affairs of the Trust in accordance with the terms of this Declaration. Subject
to the limitations set forth in paragraph (b) of this Section, and in
accordance with the following provisions (i) and (ii), the Trustees and the
Administrators shall have the authority to enter into all transactions and
agreements determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees or the
Administrators, as the case may be, under this Declaration, and to perform all
acts in furtherance thereof, including without limitation, the following:
(i) Each Administrator shall:
(A) assist in the issuance and sale of the Securities;
(B) cause the Trust to enter into, and to execute and
deliver on behalf of the Trust, such agreements as may be
necessary or desirable in connection with the purposes and
function of the Trust, including the Registration Rights
Agreement and agreements with the Depositary and the Paying
Agent;
(C) assist in compliance with the Securities Act,
applicable state securities or blue sky laws and the Trust
Indenture Act;
(D) execute and file one or more registration
statements relating to the Capital Securities contemplated by
the Registration Rights Agreement and prepare and file all
periodic and other reports and other documents pursuant to the
foregoing;
(E) if and at such time determined by the Sponsor,
assist in the designation of the Capital Securities for trading
in the Private Offering, Resales and Trading through the
Automatic Linkages (PORTAL) system or any other national stock
exchange or the Nasdaq Stock Markets National Market;
(F) send notices (other than notices of default), and
other information regarding the Securities and the Debentures
to the Holders in accordance with this Declaration;
(G) consent to the appointment of a Paying Agent,
Transfer Agent and Registrar in accordance with this
Declaration which consent shall not be unreasonably withheld;
(H) execute the Securities in accordance with this
Declaration;
(I) execute and deliver closing certificates, pursuant
to the Purchase Agreement, and apply for a taxpayer
identification number;
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(J) unless otherwise determined by the Institutional
Trustee or the Holders of a Majority in liquidation amount of
the Securities or as otherwise required by the Business Trust
Act or the Trust Indenture Act, execute on behalf of the Trust
(either acting alone or together with any or all of the
Administrators) any documents that the Administrators have the
power to execute pursuant to this Declaration;
(K) take any action incidental to the foregoing as the
Institutional Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this
Declaration for the benefit of the Holders (without
consideration of the effect of any such action on any
particular Holder);
(L) execute and deliver letters or documents to, or
instruments with, DTC relating to the Capital Securities;
(M) establish a record date with respect to all actions
to be taken hereunder that require a record date be
established, including and with respect to, for the purposes of
316(c) of the Trust Indenture Act, Distributions, voting
rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Capital Securities and Holders of
Common Securities as to such actions and applicable record
dates; and
(N) duly prepare and file all applicable tax returns
and tax information reports that are required to be filed with
respect to the Trust on behalf of the Trust.
(ii) As among the Trustees and the Administrators, the
Institutional Trustee shall have the power, duty and authority to act
on behalf of the Trust with respect to the following matters:
(A) the establishment of the Property Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures in the Property
Account;
(D) the distribution through the Paying Agent of
amounts owed to the Holders in respect of the Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
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(F) the sending of notices of default and other
information regarding the Securities and the Debentures to the
Holders in accordance with this Declaration;
(G) the distribution of the Trust Property in
accordance with the terms of this Declaration;
(H) to the extent provided in this Declaration, the
winding up of the affairs of and liquidation of the Trust and
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) after any Event of Default (provided that such
Event of Default is not by or with respect to the Institutional
Trustee) the taking of any action incidental to the foregoing
as the Institutional Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this
Declaration and protect and conserve the Trust Property for the
benefit of the Holders (without consideration of the effect of
any such action on any particular Holder); and
(J) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trusts valid existence, rights, franchises and privileges as a
statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such existence
is necessary to protect the limited liability of the Holders of
the Capital Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(iii) The Institutional Trustee shall have the power and
authority to act on behalf of the Trust with respect to any of the
duties, liabilities, powers or the authority of the Administrators
set forth in Section 3.6(a)(i)(F) and (H) herein but shall not have a
duty to do any such act unless specifically requested to do so in
writing by the Sponsor, and shall then be fully protected in acting
pursuant to such written request; and in the event of a conflict
between the action of the Administrators and the action of the
Institutional Trustee, the action of the Institutional Trustee shall
prevail.
(b) So long as this Declaration remains in effect, the Trust (or
the Trustees or Administrators acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, neither the Trustees nor the
Administrators may cause the Trust to (i) acquire any investments or engage in
any activities not authorized by this Declaration, (ii) sell, assign, transfer,
exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust
Property or interests therein, including to Holders, except as expressly
provided herein, (iii) take any action that would reasonably be expected to
cause the Trust to fail or cease to qualify as a grantor trust for United
States federal income tax purposes, (iv) incur any indebtedness for borrowed
money or issue any other debt or (v) take or consent to any action that would
result in the placement of a lien on any of the Trust Property. The
Institutional Trustee shall, at the sole
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cost and expense of the Trust, defend all claims and demands of all Persons at
any time claiming any lien on any of the Trust Property adverse to the interest
of the Trust or the Holders in their capacity as Holders.
(c) Notwithstanding anything herein to the contrary, the
Administrators, the Institutional Trustee and the Holders of a Majority in
liquidation amount of the Common Securities are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so that the Trust
will not be deemed to be an investment company required to be registered under
the Investment Company Act, or fail to be classified as a grantor trust for
United States federal income tax purposes and so that the Debentures will be
treated as indebtedness of the Debenture Issuer for United States federal
income tax purposes. In this connection, the Institutional Trustee and the
Holders of a Majority in liquidation amount of the Common Securities are
authorized to take any action, not inconsistent with applicable laws, the
Certificate of Trust or this Declaration, as amended from time to time, that
each of the Institutional Trustee and the Holders of a Majority in liquidation
amount of the Common Securities determines in its discretion to be necessary or
desirable for such purposes, even if such action adversely affects the
interests of the Holders of the Capital Securities.
(d) All expenses incurred by the Administrators or the Trustees
pursuant to this Section 3.6 shall be reimbursed by the Sponsor, and the
Trustees shall have no obligations with respect to such expenses.
(e) The assets of the Trust shall consist solely of the Trust
Property.
(f) Legal title to all Trust Property shall be vested at all times
in the Institutional Trustee (in its capacity as such) and shall be held and
administered by the Institutional Trustee for the benefit of the Trust and
neither the Administrator nor the Holders in accordance with this Declaration.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Institutional Trustee shall cause the Trust
not to, engage in any activity other than as required or authorized by this
Declaration. In particular, the Trust shall not and the Institutional Trustee
shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding
the Debentures, but shall distribute all such proceeds to Holders of
the Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets or investments or engage in any
activities other than as expressly provided herein;
(iii) possess Trust Property for other than a Trust purpose;
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(iv make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way
whatsoever other than as expressly provided herein;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) other than as provided in this Declaration (including
Annex I), (A) direct the time, method and place of exercising any
trust or power conferred upon the Debenture Trustee with respect to
the Debentures, (B) waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any declaration
that the principal of all the Debentures shall be due and payable, or
(D) consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be required
unless the Trust shall have received an opinion of counsel to the
effect that such modification will not cause more than an
insubstantial risk that for United States federal income tax purposes
the Trust will not be classified as a grantor trust.
SECTION 3.8 Powers and Duties of the Institutional Trustee. (a)
The legal title to the Debentures shall be owned by and held of record in the
name of the Institutional Trustee in trust for the benefit of the Trust and the
Holders of the Securities. The right, title and interest of the Institutional
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Institutional Trustee in accordance with Section 5.7.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Institutional Trustee shall not transfer its right, title
and interest in the Debentures to the Administrators or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the Property Account) in the name of and under the
exclusive control of the Institutional Trustee, and maintained in the
Institutional Trustees trust department, on behalf of the Holders of
the Securities and, promptly upon the receipt of payments of funds
made in respect of the Debentures held by the Institutional Trustee,
deposit such funds into the Property Account and make payments to the
Holders of the Capital Securities and Holders of the Common
Securities from the Property Account in accordance with Section 6.1.
Funds in the Property Account shall be held uninvested until
disbursed in accordance with this Declaration.
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(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Capital
Securities and the Common Securities to the extent the Debentures are
redeemed or mature; and
(iii) upon written notice of distribution issued by the
Administrators in accordance with the terms of the Securities, engage
in such ministerial activities as shall be necessary or appropriate
to effect the distribution of the Debentures to Holders of Securities
upon the occurrence of certain circumstances pursuant to the terms of
the Securities.
(d) The Institutional Trustee shall take all actions and perform
such duties as may be specifically required of the Institutional Trustee
pursuant to the terms of the Securities.
(e) The Institutional Trustee may bring or defend, pay, collect,
compromise, arbitrate, resort to legal action, or otherwise adjust claims or
demands of or against the Trust (Legal Action) which arises out of or in
connection with an Event of Default of which a Responsible Officer of the
Institutional Trustee has actual knowledge or the Institutional Trustees duties
and obligations under this Declaration or the Trust Indenture Act; provided,
however, that if an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Debenture Issuer to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption, on the redemption date), then a Holder
of the Capital Securities may directly institute a proceeding against the
Debenture Issuer for enforcement of payment to such Holder of the principal of
or interest on the Debentures having a principal amount equal to the aggregate
liquidation amount of the Capital Securities of such Holder (a Direct Action)
on or after the respective due date specified in the Debentures. In connection
with such Direct Action, the rights of the Holders of the Common Securities
will be subrogated to the rights of such Holder of the Capital Securities to
the extent of any payment made by the Debenture Issuer to such Holder of the
Capital Securities in such Direct Action; provided, however, that no Holder of
the Common Securities may exercise any such right of subrogation so long as an
Event of Default with respect to the Capital Securities has occurred and is
continuing.
(f) The Institutional Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of the Securities
pursuant to the terms of the Securities; or
(ii) a Successor Institutional Trustee (as defined herein) has
been appointed and has accepted that appointment in accordance with
Section 5.7.
(g) The Institutional Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a Holder of the Debentures under
the Indenture and, if an Event of Default occurs and is continuing, the
Institutional Trustee may, for the benefit of Holders of the Securities,
enforce its rights as Holder of the Debentures subject to the rights of the
Holders pursuant to this Declaration (including Annex I) and the terms of the
Securities.
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The Institutional Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Institutional Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust
set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities.
(a) The Institutional Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and no implied covenants shall be read into this
Declaration against the Institutional Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6), the
Institutional Trustee shall exercise such of the rights and powers vested in it
by this Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) The duties and responsibilities of the Trustees and the
Administrators shall be as provided by this Declaration and, in the case of the
Institutional Trustee, by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Declaration shall require the Trustees or
Administrators to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate 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
Declaration relating to the conduct or affecting the liability of or affording
protection to the Trustees or Administrators shall be subject to the provisions
of this Article. Nothing in this Declaration shall be construed to release an
Administrator or Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, provided that the
Administrator or Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder. To the extent that, at law or in equity, a Trustee or an
Administrator has duties and liabilities relating thereto to the Trust or to
the Holders, such Administrator or Trustee shall not be liable to the Trust or
to any Holder for such Administrators good faith reliance on the provisions of
this Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of the Administrators or the Trustees
otherwise existing at law or in equity, are agreed by the Sponsor and the
Holders to replace such other duties and liabilities of the Administrators or
the Trustees.
(c) All payments made by the Institutional Trustee or a Paying
Agent in respect of the Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the
Institutional Trustee or a Paying Agent to make payments in accordance with the
terms hereof. Each Holder, by its acceptance of a Security, agrees that it
will look solely to the revenue and proceeds from the Trust Property to the
extent legally available for
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distribution to it as herein provided and that the Trustees and the
Administrators are not personally liable to it for any amount distributable in
respect of any Security or for any other liability in respect of any Security.
This Section 3.9(c) does not limit the liability of the Trustees expressly set
forth elsewhere in this Declaration or, in the case of the Institutional
Trustee, in the Trust Indenture Act.
(d) No provision of this Declaration shall be construed to relieve
the Institutional Trustee from liability with respect to matters that are
within the authority of the Institutional Trustee under this Declaration for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) the Institutional Trustee shall not be liable for any
error or judgment made in good faith by an authorized signatory of
the Institutional Trustee, unless it shall be proved that the
Institutional Trustee was negligent in ascertaining the pertinent
facts;
(ii) the Institutional Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less
than a Majority in liquidation amount of the Capital Securities or
the Common Securities, as applicable, relating to the time, method
and place of conducting any proceeding for any remedy available to
the Institutional Trustee, or exercising any trust or power conferred
upon the Institutional Trustee under this Declaration;
(iii) the Institutional Trustees sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Property Account shall be to deal with such property in a similar
manner as the Institutional Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this
Declaration and the Trust Indenture Act;
(iv) the Institutional Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
in writing with the Sponsor; and money held by the Institutional
Trustee need not be segregated from other funds held by it except in
relation to the Property Account maintained by the Institutional
Trustee pursuant to Section 3.8(c)(i) and except to the extent
otherwise required by law; and
(v) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Administrators or the Sponsor with
their respective duties under this Declaration, nor shall the
Institutional Trustee be liable for any default or misconduct of the
Administrators or the Sponsor.
(e) The Administrators shall not be responsible for monitoring the
compliance by the Trustees or the Sponsor with their respective duties under
this Declaration, nor shall any
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Administrator be liable for the default or misconduct of any other
Administrator, the Trustee or the Sponsor.
SECTION 3.10 Certain Rights of Institutional Trustee. Subject to
the provisions of Section 3.9:
(a) the Institutional Trustee may conclusively rely and shall fully
be protected in acting or refraining from acting in good faith upon any
resolution, opinion of counsel, certificate, written representation of a Holder
or transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(b) if (i) in performing its duties under this Declaration, the
Institutional Trustee is required to decide between alternative courses of
action, or (ii) in construing any of the provisions of this Declaration, the
Institutional Trustee finds the same ambiguous or inconsistent with any other
provisions contained herein, or (iii) the Institutional Trustee is unsure of
the application of any provision of this Declaration, then, except as to any
matter as to which the Holders of Capital Securities are entitled to vote under
the terms of this Declaration, the Institutional Trustee may deliver a notice
to the Sponsor requesting the Sponsors opinion as to the course of action to be
taken and the Institutional Trustee shall take such action, or refrain from
taking such action, as the Institutional Trustee in its sole discretion shall
deem advisable and in the best interests of the Holders, in which event the
Institutional Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Sponsor contemplated by this
Declaration shall be sufficiently evidenced by an Officers Certificate;
(d) in the administration of this Declaration, before undertaking,
suffering or omitting any action hereunder, the Institutional Trustee may
(unless other evidence is herein specifically prescribed), in the absence of
bad faith on its part, conclusively rely upon an Officers Certificate as to
factual matters set forth therein; the Institutional Trustee shall have no duty
to see to any recording, filing or registration of any instrument (including
any financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or reregistration thereof;
(e) the Institutional Trustee may consult with counsel of its
choice (which counsel may be counsel to the Sponsor or any of its Affiliates)
and the advice of such 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 and in accordance with such advice; the
Institutional Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of competent
jurisdiction;
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(f) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at the
request or direction of any of the Holders pursuant to this Declaration, unless
such Holders shall have offered to the Institutional Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction, provided that nothing contained in this Section 3.10(g) shall be
taken to relieve the Institutional Trustee, upon the occurrence of an Event of
Default, or its obligation to exercise the rights and powers vested in it by
this Declaration;
(g) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other
paper or document, unless requested in writing to do so by one or more Holders,
but the Institutional Trustee may make such further inquiry or investigation
into such facts or matters as it may see fit;
(h) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys and the Institutional Trustee shall not be
responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent or attorney appointed with due care by it
hereunder;
(i) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action hereunder
the Institutional Trustee (i) may request instructions from the Holders of the
Capital Securities which instructions may only be given by the Holders of the
same proportion in liquidation amount of the Capital Securities as would be
entitled to direct the Institutional Trustee under the terms of the Capital
Securities in respect of such remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be fully protected in acting in
accordance with such instructions;
(j) except as otherwise expressly provided in this Declaration, the
Institutional Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Declaration;
(k) when the Institutional Trustee incurs expenses or renders
services in connection with a Bankruptcy Event, 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 or
law relating to creditors rights generally;
(l) the Institutional Trustee shall not be charged with knowledge
of an Event of Default unless a Responsible Officer of the Institutional
Trustee obtains actual knowledge of such event or the Institutional Trustee
receives written notice of such event from Holders
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holding more than a Majority in liquidation amount of the Capital Securities
(based upon liquidation amount);
(m) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional Trustee or its agents alone shall be sufficient
and effective to perform any such action and no third party shall be required
to inquire as to the authority of the Institutional Trustee to so act or as to
its compliance with any of the terms and provisions of this Declaration, both
of which shall be conclusively evidenced by the Institutional Trustees or its
agents taking such action; and
(n) no provision of this Declaration shall be deemed to impose any
duty or obligation on the Institutional Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Institutional
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee. Notwithstanding any other provision
of this Declaration other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of any of the Trustees or the Administrators
described in this Declaration. Except as set forth in Section 5.2, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of 3807 of the Business Trust Act.
SECTION 3.12 Execution of Documents. Subject to the provisions of
Section 3.11, unless otherwise determined in writing by the Institutional
Trustee, and except as otherwise required by the Business Trust Act, the
Institutional Trustee, or any one or more of the Administrators, as the case
may be, is authorized to execute on behalf of the Trust any documents that the
Trustees or the Administrators, as the case may be, have the power and
authority to execute pursuant to this Declaration.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be taken as
the statements of the Sponsor, and the Trustees and the Administrators do not
assume any responsibility for their correctness. The Trustees and the
Administrators make no representations as to the value or condition of the
property of the Trust or any part thereof. The Trustees and the Administrators
make no representations as to the validity or sufficiency of this Declaration,
the Debentures or the Securities and shall not be responsible for the
application by the Sponsor of the proceeds of the Debentures.
SECTION 3.14 Duration of Trust. The Trust, unless terminated
pursuant to the provisions of Article VIII hereof, shall have existence for 55
years from the Closing Date.
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SECTION 3.15 Mergers. (a) The Trust may not consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any corporation or
other body, except as described in this Section 3.15(b) and (c).
(b) The Trust may, at the request of the Holders of the Common
Securities and with the consent of the Holders of a Majority in liquidation
amount of the Capital Securities but without the consent of the Trustees
consolidate, amalgamate, merge with or into, or be replaced by a trust
organized as such under the laws of any State; provided that:
(i) if the Trust is not the Survivor, such successor entity
(the Successor Entity) either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Securities (the
Successor Securities) so that the Successor Securities rank the
same as the Securities rank with respect to Distributions and
payments upon Liquidation, redemption and otherwise;
(ii) the Institutional Trustee expressly appoints a trustee of
the Successor Entity that possesses the same powers and duties as the
Institutional Trustee as the Holder of the Debentures;
(iii) the Capital Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification
of issuance, on any national securities exchange or with another
organization on which the Capital Securities are then listed or
quoted, if any;
(iv) such merger, consolidation, amalgamation or replacement
does not cause the Capital Securities (including any Successor
Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including any Successor Securities) in
any material respect (other than with respect to any dilution of such
Holders interests in the Successor Entity as a result of such merger,
consolidation, amalgamation or replacement);
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
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(vii) prior to such merger, consolidation, amalgamation or
replacement, the Trust has received an opinion of a nationally
recognized independent counsel to the Trust experienced in such
matters to the effect that:
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than with
respect to any dilution of the Holders interest in the
Successor Entity);
(B) following such merger, consolidation, amalgamation
or replacement, neither the Trust nor the Successor Entity will
be required to register as an Investment Company;
(C) following such merger, consolidation, amalgamation
or replacement, the Trust (or the Successor Entity) will
continue to be classified as a grantor trust for United States
federal income tax purposes; and
(viii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities at least to the
extent provided by the Securities Guarantees;
(ix) prior to such merger, consolidation, amalgamation or
replacement, the Institutional Trustee shall have received an
Officers Certificate of the Administrators and an opinion of counsel,
each to the effect that all conditions precedent of this paragraph
(b) to such transaction have been satisfied.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or to be replaced by any other
entity or permit any other entity to consolidate, amalgamate, merge with or
into, or replace it if such consolidation, amalgamation, merger or replacement
would cause the Trust or Successor Entity to be classified as other than a
grantor trust for United States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsors Purchase of Common Securities. On the Closing
Date, the Sponsor will purchase all of the Common Securities issued by the
Trust, in an amount at least equal to 3% of the capital of the Trust, at the
same time as the Capital Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor. In connection with the
issue and sale of the Capital Securities, the Sponsor shall have the exclusive
right and responsibility to engage in the following activities (and any actions
taken by the Sponsor in furtherance of the
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following prior to the date of this Declaration are hereby ratified and
confirmed in all respects):
(a) to prepare and distribute an offering memorandum in relation to
the Capital Securities, including any amendments or supplements thereto (the
Offering Memorandum) and to take any action necessary to obtain an exemption
from the Securities Act;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Capital Securities and to do
any and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States;
(c) to prepare for filing and request the Administrators to cause
the filing by the Trust, as may be appropriate, of an application to the
PORTAL, the New York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing or quotation upon notice of issuance of any
Capital Securities; and
(d) to negotiate the terms of and/or execute on behalf of the
Trust, the Purchase Agreement, the Placement Agreement, the Registration Rights
Agreement and other related agreements providing for the sale of the Capital
Securities.
(e) to take any other actions necessary or desirable to carry
out any of the foregoing activities.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees. The number of Trustees initially
shall be two (2), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees
may be increased or decreased by vote of the Holders of a Majority in
liquidation amount of the Capital Securities voting as a class at a meeting of
the Holders of the Capital Securities; provided, however, that there shall be a
Delaware Trustee if required by Section 5.2; and there shall always be one
Trustee who shall be the Institutional Trustee, and such Trustee may also serve
as Delaware Trustee if it meets the applicable requirements, in which case
Section 3.11 shall have no application to such entity in its capacity as
Institutional Trustee.
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SECTION 5.2 Delaware Trustee. If required by the Business Trust
Act, one Trustee (the Delaware Trustee) shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the
requirements of applicable law, including 3807 of the Business Trust Act.
SECTION 5.3 Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor;
(ii) not offer or provide credit or credit enhancement to the
Trust; and
(iii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation permitted by
the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.7(a).
(c) If the Institutional Trustee has or shall acquire any
conflicting interest within the meaning of 310(b) of the Trust Indenture Act,
the Institutional Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Declaration.
(d) The Indenture, the Debt Securities (as defined therein) issued
or to be issued thereunder, the Declaration, the Securities issued or to be
issued hereunder and the Capital Securities Guarantee and Common Securities
Guarantee in connection therewith shall be
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deemed to be specifically described in this Declaration for purposes of clause
(i) of the proviso contained in 310(b)(1) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be The Bank of New
York.
SECTION 5.4 Certain Qualifications of the Delaware Trustee
Generally. The Delaware Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.5 Administrators. The initial Administrators shall be Xxx
X. Xxxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxx.
Except where a requirement for action by a specific number of
Administrators is expressly set forth in this Declaration and except with
respect to any action the taking of which is the subject of a meeting of the
Administrators any action required or permitted to be taken by the
Administrators may be taken by, and any power of the Administrators may be
exercised by, or with the consent of, any one such Administrators.
SECTION 5.6 Delaware Trustee. The initial Delaware Trustee
shall be The Bank of New York (Delaware).
SECTION 5.7 Appointment, Removal and Resignation of Trustees and
Administrators.
(a) No resignation or removal of any Trustee (the Relevant 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 this Section 5.7.
Subject to the immediately preceding paragraph, a Relevant Trustee
may resign at any time by giving written notice thereof to the Holders of the
Securities and by appointing a successor Relevant Trustee. Upon the
resignation of the Institutional Trustee, the Institutional Trustee shall
appoint a successor by requesting from at least three Persons meeting the
eligibility requirements, its expenses and charges to serve as the successor
Institutional Trustee on a form provided by the Administrators, and selecting
the Person who agrees to the lowest expense and charges (the Successor
Institutional Trustee). If the instrument of acceptance by the successor
Relevant Trustee required by Section 5.7 shall not have been delivered to the
Relevant Trustee within 60 days after the giving of such notice of resignation
or delivery of the instrument of removal, the Relevant Trustee may petition, at
the expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Relevant
Trustee. The Institutional Trustee shall have no liability for the selection
of such successor pursuant to this Section 5.7.
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The Institutional Trustee or the Delaware Trustee, or both of them,
may be removed by the act of the Holders of a Majority in liquidation amount of
the Capital Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust) for good cause or if an Event of Default
shall have occurred and be continuing at any time. If any Trustee shall be so
removed, the Holders of Capital Securities, by act of the Holders of a Majority
in liquidation amount of the Capital Securities then outstanding delivered to
the Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and such successor Trustee shall comply with the applicable
requirements of this Section 5.7. If no successor Relevant Trustee shall have
been so appointed by the Holders of a Majority in liquidation amount of the
Capital Securities and accepted appointment in the manner required by this
Section 5.7, within 30 days after delivery of an instrument of removal, any
Holder who has been a Holder of the Securities 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 Relevant Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a successor Relevant Trust or Trustees.
The Institutional Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 5.7(b) and shall give notice to the
Sponsor. Each notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust Office if it is the Institutional
Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration, in the event a Delaware Trustee who is a natural person dies or
becomes incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the Institutional Trustee following
the procedures in this Section 5.7 (with the successor being a Person who
satisfies the eligibility requirement for a Delaware Trustee set forth in this
Declaration) (the Successor Delaware Trustee).
(b) In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee all
the rights, powers, trusts and duties of the retiring Relevant Trustee with
respect to the Securities and the Trust and (b) shall add to or change any of
the provisions of this Declaration as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee,
it being understood that nothing herein or in such amendment shall constitute
such Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor
Relevant Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Relevant
Trustee; but, on request of the Trust of any successor Relevant Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver to such
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successor Relevant Trustee all Trust Property, all proceeds thereof and money
held by such retiring Relevant Trustee hereunder with respect to the Securities
and the Trust.
(c) No Institutional Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Institutional Trustee or
Successor Delaware Trustee, as the case may be.
(d) No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
(e) The Holders of the Capital Securities will have no right to
vote to appoint, remove or replace the Administrators, which voting rights are
vested exclusively in the Holders of the Common Securities.
The Administrators (other than the initial Administrators) shall be
appointed by the Holders of a Majority in liquidation amount of the Common
Securities, and all Administrators (including the initial Administrators) may
be removed by the Holders of a Majority in liquidation amount of the Common
Securities or may resign at any time. Each Administrator shall sign an
agreement agreeing to comply with the terms of this Declaration. If at any
time there is no Administrator, the Institutional Trustee or any Holder who has
been a Holder of Securities for at least six months may petition any court of
competent jurisdiction for the appointment of one or more Administrators.
Whenever a vacancy in the number of Administrators shall occur, until
such vacancy is filled by the appointment of an Administrator in accordance
with this Section 5.7, the Administrators in office, regardless of their number
(and notwithstanding any other provision of this Declaration), shall have all
the powers granted to the Administrators and shall discharge all the duties
imposed upon the Administrators by this Declaration.
Notwithstanding the foregoing, or any other provision of this
Declaration, in the event any Administrator who is a natural person dies or
becomes, in the opinion of the Holders of a Majority in liquidation amount of
the Common Securities, incompetent, or incapacitated, the vacancy created by
such death, incompetence or incapacity may be filled by the remaining
Administrators, if there were at least two of them prior to such vacancy, and
by the Sponsor, if there were not two such Administrators immediately prior to
such vacancy (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrators).
Except as otherwise provided in this Declaration, or by applicable
law, any one Administrator may execute any document or otherwise take any
action which the Administrators are authorized to take under this Declaration.
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SECTION 5.8 Vacancies Among Trustees. If a Trustee ceases to hold
office for any reason and the number of Trustees is not reduced pursuant to
Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1,
a vacancy shall occur. A resolution certifying the existence of such vacancy
by the Trustees or, if there are more than two, a majority of the Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy
shall be filled with an a Trustee appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies. The death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity to perform the duties of a Trustee shall not operate to dissolve,
terminate or annul the Trust. Whenever a vacancy in the number of Trustees
shall occur, until such vacancy is filled by the appointment of a Trustee in
accordance with Section 5.7, the Institutional Trustee shall have all the
powers granted to the Trustees and shall discharge all the duties imposed upon
the Trustees by this Declaration.
SECTION 5.10 Meetings of the Trustees and the Administrators.
Meetings of the Trustees or the Administrators shall be held from time to time
upon the call of any Trustee or Administrator, as applicable. Regular meetings
of the Trustees and the Administrators, respectively, may be held at a time and
place fixed by resolution of the Trustees or the Administrators, as applicable.
Notice of any in-person meetings of the Trustees or the Administrators shall be
hand delivered or otherwise delivered in writing (including by facsimile, with
a hard copy by overnight courier) not less than 48 hours before such meeting.
Notice of any telephonic meetings of the Trustees or the Administrators or any
committee thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than
24 hours before a meeting. Notices shall contain a brief statement of the
time, place and anticipated purposes of the meeting. The presence (whether in
person or by telephone) of a Trustee or an Administrator, as the case may be,
at a meeting shall constitute a waiver of notice of such meeting except where a
Trustee or an Administrator, as the case may be, attends a meeting for the
express purpose of objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened. Unless provided
otherwise in this Declaration, any action of the Trustees or the
Administrators, as the case may be, may be taken at a meeting by vote of a
majority of the Trustees or the Administrators present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Trustees or the Administrators. Meetings of the Trustees and the
Administrators together shall be held from the time to time upon the call of
any Trustee or Administrator.
SECTION 5.11 Delegation of Power. (a) Any Trustee or any
Administrator, as the case may be, may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6; and
(b) the Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such
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instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of the Trust, as
set forth herein.
SECTION 5.12 Conversion, Consolidation or Succession to Business.
Any Person into which the Institutional Trustee or the Delaware Trustee, as the
case may be, may be merged or converted or with which either may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as
the case may be, shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions. Holders shall receive Distributions (as
defined herein) in accordance with the applicable terms of the relevant Holders
Securities. Distributions shall be made on the Capital Securities and the
Common Securities in accordance with the preferences set forth in their
respective terms as set forth in Annex I. If and to the extent that the
Debenture Issuer makes a payment of interest (including any Compounded
Interest, Special Interest and Additional Interest and/or principal on the
Debentures held by the Institutional Trustee (the amount of any such payment
being a Payment Amount), the Institutional Trustee shall and is directed, to
the extent funds are available for that purpose, to make a distribution (a
Distribution) of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities. (a) The
Administrators shall on behalf of the Trust issue one series of capital
securities substantially in the form of Exhibit A-1 representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I (Initial Capital Securities) and to be exchanged pursuant to
the Registration Rights Agreement for Capital Securities substantially in the
form of Exhibit A-2 having the terms set forth in Annex I (the Exchange
Securities and together with the Initial Capital Securities, the Capital
Securities) and one series of common securities representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I (the Common Securities). The Trust shall issue no securities
or other
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interests in the assets of the Trust other than the Capital Securities and the
Common Securities. The Capital Securities rank pari passu and payment thereon
shall be made Pro Rata with the Common Securities except that, where an Event
of Default has occurred and is continuing, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights to payment
of the Holders of the Capital Securities.
(b) The Certificates shall be signed on behalf of the Trust by one
or more Administrators. Such signature shall be the facsimile or manual
signature of any Administrator. In case any Administrator of the Trust who
shall have signed any of the Securities shall cease to be such Administrator
before the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Administrator; and any Certificate may
be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be an Administrator of the Trust, although at
the date of the execution and delivery of the Declaration any such person was
not such an Administrator. A Capital Security shall not be valid until
authenticated by the manual signature of an authorized signatory of the
Institutional Trustee. Such signature shall be conclusive evidence that the
Capital Security has been authenticated under this Declaration. Upon written
order of the Trust signed by one Administrator, the Institutional Trustee shall
authenticate the Capital Securities for original issue. The Institutional
Trustee may appoint an authenticating agent acceptable to the Trust to
authenticate the Capital Securities. A Common Security need not be so
authenticated.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder or a Capital
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and
shall be bound by, this Declaration and the Capital Securities Guarantee.
SECTION 7.2 Paying Agent, Transfer Agent and Registrar. The Trust
shall maintain in the Borough of Manhattan, City of New York, State of New
York, an office or agency where the Capital Securities may be presented for
payment (Paying Agent), and an office or agency where Securities may be
presented for registration of transfer (the Transfer Agent). The Trust shall
keep or cause to be kept at such office or agency a register for the purpose of
registering Securities and transfers and exchanges of Securities, such register
to be held by a registrar (the Registrar). The Administrators may appoint the
Paying Agent, the Registrar, the Transfer Agent and may appoint one or more
additional Paying Agents or one or more co-Registrars, or one or more
co-Transfer Agents in such other locations as it shall
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determine. The term Paying Agent includes any additional paying agent, the
term Registrar includes any additional registrar or co-Registrar and the term
Transfer Agent includes any additional transfer agent. The Administrators may
change any Paying Agent without prior notice to any Holder. The Administrators
shall notify the Institutional Trustee of the name and address of any Paying
Agent, Transfer Agent and Registrar not a party to this Declaration. The
Administrators hereby appoint the Institutional Trustee to act as Paying Agent,
Transfer Agent and Registrar for the Capital Securities and the Common
Securities. The Institutional Trustee or any of its Affiliates may act as
Paying Agent or Registrar.
SECTION 7.3 Form and Dating. The Initial Capital Securities and the
Institutional Trustees certificate of authentication thereon shall be
substantially in the form of Exhibit A-1, the Exchange Capital Securities and
the Institutional Trustees certificate of authentication thereon shall be
substantially in the form of Exhibit A-2 and the Common Securities shall be
substantially in the form of Exhibit A-3, each of which is hereby incorporated
in and expressly made a part of this Declaration. Certificates may be typed,
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrators, as conclusively evidenced by their
execution thereof. The Securities may have letters, numbers, notations or
other marks of identification or designation and such legends or endorsements
required by law, stock exchange rule, agreements to which the Trust is subject,
if any, or usage (provided that any such notation, legend or endorsement is in
a form acceptable to the Sponsor). The Trust at the direction of the Sponsor
shall furnish any such legend not contained in Exhibit A-1 to the Institutional
Trustee in writing. Each Capital Security shall be dated the date of its
authentication. The terms and provisions of the Securities set forth in Annex
I and the forms of Securities set forth in Exhibits X-0, X-0 and A-3 are part
of the terms of this Declaration and to the extent applicable, the
Institutional Trustee, the Delaware Trustee, the Administrators and the
Sponsor, by their execution and delivery of this Declaration, expressly agree
to such terms and provisions and to be bound thereby. Capital Securities will
be issued only in blocks having a stated liquidation amount of not less than
$100,000.
(a) Global Capital Securities. The Capital Securities are being
offered and sold by the Trust pursuant to the Purchase Agreement and the
Placement Agreement. Securities offered and sold to Qualified Institutional
Buyers (QIBs) in reliance on Rule 144A as provided in the Purchase Agreement,
shall be issued in the form of one or more permanent global Securities in
definitive, fully registered form without distribution coupons with the
appropriate global legends and the Restricted Securities Legend set forth in
Section 9.2(g) hereto (each, a Rule 144A Global Capital Security), which shall
be deposited on behalf of the purchasers of the Capital Securities represented
thereby with the Institutional Trustee, at its New York office, as custodian
for the Depositary, and registered in the name of the Depositary or a nominee
of the Depositary, duly executed by the Trust and authenticated by the
Institutional Trustee as hereinafter provided. Such Global Capital Security
shall constitute a single Capital Security for all purposes of this
Declaration. The number of Capital Securities represented by the Rule 144A
Global Capital Security may from time to time be
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increased or decreased by adjustments made on the records of the Institutional
Trustee and the Depositary or its nominee as hereinafter provided.
In the event the Initial Global Security is tendered in a Registered
Exchange Offer, it shall be exchanged for interests in a single, permanent
global security in definitive, fully registered form without distribution
coupons. Upon issuance such Exchange Global Security shall be deposited on
behalf of the holders of the Exchange Capital Securities represented thereby
with the Institutional Trustee, at its New York office, as custodian for the
Depositary, and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Trust and authenticated by the Institutional
Trustee as hereinafter provided.
(b) Book-Entry Provisions. This Section 7.3(b) shall apply only to
the Rule 144A Global Capital Securities and such other Capital Securities in
global form as may be authorized by the Trust to be deposited with or on behalf
of the Depositary. The Trust shall execute and the Institutional Trustee
shall, in accordance with this Section 7.3, authenticate and make available for
delivery initially one or more Rule 144A Global Capital Securities that (a)
shall be registered in the name of Cede & Co. or other nominee of such
Depositary and (b) shall be delivered by the Institutional Trustee to such
Depositary or pursuant to such Depositarys instructions or held by the
Institutional Trustee as custodian for the Depositary. Clearing Agency
Participants shall have no rights under this Declaration with respect to any
Rule 144A Global Capital Security held on their behalf by the Depositary or by
the Institutional Trustee as the custodian of the Depositary or under such Rule
144A Global Capital Security, and the Depositary may be treated by the Trust,
the Institutional Trustee and any agent of the Trust or the Institutional
Trustee as the absolute owner of such Rule 144A Global Capital Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Trust, the Institutional Trustee or any agent of the Trust or the
Institutional Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and the Clearing Agency Participants, the operation of customary
practices of such Depositary governing the exercise of the rights of a holder
of a beneficial interest in any Rule 144A Global Capital Security.
(c) Definitive Capital Securities. Except as provided in Section
7.5, Section 9.2(e) and Section 9.2(f), owners of beneficial interests in the
Rule 144A Global Capital Security will not be entitled to receive physical
delivery of Definitive Capital Securities. Purchasers of Initial Securities
who are institutional accredited investors (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) (IAIs), but are not QIBs will receive
Initial Capital Securities in the form of individual certificates in
definitive, fully registered form without distribution coupons and with the
Restricted Securities Legend (Restricted Definitive Capital Securities);
provided, however, that upon registration of transfer of such Restricted
Definitive Capital Securities to a QIB, such Restricted Definitive Capital
Securities will, unless the Rule 144A Global Capital Security has previously
been exchanged, be exchanged for an interest in a Rule 144A Global Capital
Security pursuant to the provisions set forth in Section 9.2.
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Restricted Definitive Securities will bear the Restricted Securities Legend set
forth in Section 9.2(g) unless removed in accordance with this Section 7.3 or
Section 9.2.
In the event Initial Definitive Capital Securities are tendered in a
Registered Exchange Offer, they will be exchanged for certificated securities
in definitive, fully registered form, without coupons and without the
Restricted Securities Legend; or, at the option of the Holder, as an interest
in the Exchange Global Capital Security issued pursuant to Section 7.1(a).
SECTION 7.4 Mutilated, Destroyed, Lost or Stolen Certificates. If:
(a) any mutilated Certificates should be surrendered to the Registrar, or if
the Registrar shall receive evidence to their satisfaction of the destruction,
loss or theft of any Certificate; and
(b) there shall be delivered to the Registrar and the
Administrators such security or indemnity as may be required by them to keep
each of them harmless; then, in the absence of notice that such Certificate
shall have been acquired by a bona fide purchaser, an Administrator on behalf
of the Trust shall execute (and in the case of a Capital Security Certificate,
the Institutional Trustee shall authenticate) and make available for delivery,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 7.4, the Registrar or the
Administrators may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith. In
addition, the Trust may charge the recipient of such new Certificate for the
Trusts expenses in replacing the mutilated, destroyed, lost or stolen
Certificate. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 7.5 Temporary Securities.
Until definitive Securities are ready for delivery, the
Administrators may prepare and, in the case of the Capital Securities, the
Institutional Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in form of definitive Securities but may have
variations that the Administrators consider appropriate for temporary
Securities. Without unreasonable delay, the Administrators shall prepare and,
in the case of the Capital Securities, the Institutional Trustee shall
authenticate definitive Securities in exchange for temporary Securities.
SECTION 7.6 Cancellation.
The Administrators at any time may deliver Securities to the
Institutional Trustee for cancellation. The Registrar shall forward to the
Institutional Trustee any Securities surrendered to it for registration of
transfer, redemption or payment. The Institutional Trustee shall promptly
cancel all Securities surrendered for registration of transfer, payment,
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replacement or cancellation and shall return such canceled Securities as the
Administrators direct. The Administrators may not issue new Securities to
replace Securities that have been paid or that have been delivered to the
Institutional Trustee for cancellation.
SECTION 7.7 CUSIP Numbers.
The Trust in issuing the Capital Securities may use CUSIP numbers (if
then generally in use), and, if so, the Institutional Trustee shall use CUSIP
numbers in notices of redemption as a convenience to Holders of Capital
Securities; provided, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Capital
Securities or as contained in any notice of redemption and that reliance may be
placed only on the other identification numbers printed on the Capital
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Sponsor will promptly notify the Institutional
Trustee of any change in the CUSIP numbers.
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust. (a) The Trust
shall dissolve:
(i) unless earlier terminated, on March 27, 2052, the
expiration of the term of the Trust;
(ii) upon a Bankruptcy Event with respect to the Sponsor; the
Trust or the Debenture Issuer;
(iii) (other than in connection with a merger, consolidation
or similar transaction not prohibited by the Indenture, this
Declaration or the Securities Guarantees, as the case may be) upon
the filing of a certificate of dissolution or its equivalent with
respect to the Sponsor, upon the consent of Holders of a Majority in
liquidation amount of the Securities voting together as a single
class to file a certificate of cancellation with respect to the Trust
or upon the revocation of the charter of the Sponsor and the
expiration of 90 days after the date of revocation without a
reinstatement thereof;
(iv) upon the distribution of the Debentures to the Holders of
the Securities, upon exercise of the right of the Holder of all of
the outstanding Common Securities to terminate the Trust as provided
in Annex I hereto;
(v) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor, the Trust or the
Debenture Issuer by a court of competent jurisdiction;
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(vi) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall
have been paid to the Holders in accordance with the terms of the
Securities; or
(vii) before the issuance of any Securities, with the consent
of all of the Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), and after satisfaction of liabilities to
creditors of the Trust, and subject to the terms set forth in Annex I, the
Administrators and Trustees (each of whom is hereby authorized to take such
action) shall terminate the Trust by filing a certificate of cancellation with
the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 General.
(a) Where Capital Securities are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal number of Capital Securities represented by different certificates, the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfer and
exchanges, the Trust shall issue and the Institutional Trustee shall
authenticate Capital Securities at the Registrars request.
(b) Upon issuance of the Common Securities, the Sponsor shall
acquire and retain beneficial and record ownership of the Common Securities and
for so long as the Securities remain outstanding, the Sponsor shall maintain
100% ownership of the Common Securities, provided, however, that any permitted
successor of the Sponsor under the Indenture may succeed to the Sponsors
ownership of the Common Securities.
(c) Capital Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this Declaration
and in the terms of the Securities, provided, however, that Initial Capital
Securities may be transferred only in blocks having a stated liquidation amount
of not less than $100,000 (i.e., 100 Initial Capital Securities). Any transfer
or purported transfer of any Security not made in accordance with this
Declaration shall be null and void and will be deemed to be of no legal effect
whatsoever and any such transferee shall be deemed not to be the holder of such
Capital Securities for any purpose, including but not limited to the receipt of
Distributions on such Capital Securities, and such transferee shall be deemed
to have no interest whatsoever in such Capital Securities.
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(d) The Registrar shall provide for the registration of Securities
and of transfers of Securities, which will be effected without charge but only
upon payment (with such indemnity as the Registrar may require) in respect of
any tax or other governmental charges that may be imposed in relation to it.
Upon surrender for registration of transfer of any Securities, the Registrar
shall cause one or more new Securities to be issued in the name of the
designated transferee or transferees. Every Security surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Registrar duly executed by the Holder or
such Holders attorney duly authorized in writing. Each Security surrendered
for registration of transfer shall be canceled by the Institutional Trustee
pursuant to Section 7.6. A transferee of a Security shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Security. By acceptance of a Security, each transferee
shall be deemed to have agreed to be bound by this Declaration.
(e) The Trust shall not be required (i) to issue, register the
transfer of, or exchange any Capital Securities during a period beginning at
the opening of business 15 days before the day of any selection of Capital
Securities for redemption and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to have been given to
all Holders of the Capital Securities to be redeemed, or (ii) to register the
transfer or exchange of any Capital Security so selected for redemption in
whole or in part, except the unredeemed portion of any Capital Security being
redeemed in part.
SECTION 9.2 Transfer Procedures and Restrictions.
(a) General.
(i) If Initial Capital Securities are issued upon the
registration of transfer, exchange or replacement of Initial Capital
Securities bearing the Restricted Securities Legend, or if a request
is made to remove such Restricted Securities Legend on Initial
Capital Securities, the Initial Capital Securities so issued shall
bear the Restricted Securities Legend, or the Restricted Securities
Legend shall not be removed, as the case may be, unless in the Trusts
judgment there is satisfactory evidence, which may include an opinion
of counsel licensed to practice law in the State of New York, as may
be reasonably required by the Trust, that neither the legend nor the
restrictions on transfer set forth therein are required to ensure
that transfers thereof comply with the provisions of Rule 144A or
Rule 144 under the Securities Act or, with respect to Restricted
Capital Securities, that such Securities are not restricted within
the meaning of Rule 144 under the Securities Act. The Institutional
Trustee, at the written direction of the Trust, shall authenticate
and deliver Capital Securities that do not bear the legend.
(ii) If a transfer of Initial Capital Securities is made
pursuant to an effective Shelf Registration Statement, the Restricted
Securities Legend shall be removed from such Initial Capital
Securities so transferred at the request of the Holder.
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(iii) Any Initial Capital Securities which are presented
to the Registrar for exchange pursuant to a Registered Exchange Offer
shall be exchanged for Exchange Capital Securities of equal
liquidation amount upon surrender to the Registrar of the Initial
Capital Securities to be exchanged in accordance with the terms of
the Registered Exchange Offer; provided that the Initial Capital
Securities so surrendered for exchange are duly endorsed and
accompanied by a letter of transmittal or written instrument of
transfer in form satisfactory to the Institutional Trustee and the
Registrar and duly executed by the Holder thereof or such Holders
attorney who shall be duly authorized in writing to execute such
document on the behalf of such Holder.
(b) Transfer and Exchange of Definitive Capital Securities. When
Initial Definitive Capital Securities or Exchange Definitive Capital Securities
are presented to the Registrar (x) to register the transfer of such Initial
Definitive Capital Securities or Exchange Definitive Capital Securities, or (y)
to exchange such Initial Definitive Capital Securities or Exchange Definitive
Capital Securities for an equal number of Initial Definitive Capital Securities
or Exchange Definitive Capital Securities, respectively, of another number, the
Registrar shall register the transfer or make the exchange as requested if its
reasonable requirements for such transaction are met; provided, however, that
the Definitive Capital Securities surrendered for registration of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Trust
and the Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing; and
(ii) in the case of Initial Definitive Capital Securities that
are Restricted Definitive Capital Securities, are being transferred
or exchanged pursuant to an effective registration statement under
the Securities Act or pursuant to clause (A), (B), (C) or (D) below,
and are accompanied by the following additional information and
documents, as applicable:
(A) if such Restricted Definitive Capital Securities
are being delivered to the Registrar by a Holder for
registration in the name of such Holder, without transfer, a
certification from such Holder to that effect;
(B) if such Restricted Definitive Capital Securities
are being transferred pursuant to an exemption from
registration in accordance with Rule 144 under the Securities
Act: (i) a certification to that effect and (ii) if the Trust
so requests, evidence reasonably satisfactory to the Trust as
to the compliance with the restrictions set forth in the
Restricted Securities Legend;
(C) if such Restricted Definitive Capital Securities
are transferred to QIBs in accordance with Rule 144A under the
Securities Act, the transferee QIBs must take delivery of their
interests in the Capital Securities in the form of a beneficial
interest in the Rule 144A Global Capital Security in accordance
with Section 9.2(c); or
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(D) if such Restricted Definitive Capital Securities
are being transferred to a Person who is an IAI, but it is not
a QIB, upon the delivery of a certificate by the transferee IAI
substantially in the form of Exhibit B hereto and such other
opinion, certification and/or other information as may be
reasonably required by the Trust or the Sponsor, the
Institutional Trustee shall cancel or cause to be canceled such
Restricted Definitive Securities being transferred and
concurrently therewith, the Trust shall issue and the
Institutional Trustee shall authenticate, upon written order of
any Administrator, an appropriate number of Restricted
Definitive Capital Securities.
(c) Restrictions on Transfer of an Initial Definitive Capital
Security for a Beneficial Interest in an Initial Global Capital Security. An
Initial Definitive Capital Security may not be exchanged for a beneficial
interest in an Initial Global Capital Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Institutional Trustee of an
Initial Definitive Capital Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trust,
together with:
(i) if such Initial Definitive Capital Security is a
Restricted Capital Security, certification, substantially in the form
set forth of Exhibit C hereto, that such Definitive Capital Security
is being transferred to a QIB in accordance with Rule 144A under the
Securities Act; and
(ii) whether or not such Definitive Capital Security is a
Restricted Capital Security, written instructions directing the
Institutional Trustee to make, or to direct the Depositary to make,
an adjustment on its books and records with respect to such Initial
Global Capital Security to reflect an increase in the number of the
Initial Capital Securities represented by the Initial Global Capital
Security, then the Institutional Trustee shall cancel such Initial
Definitive Capital Security and cause, or direct the Depositary to
cause, the aggregate number of Initial Capital Securities represented
by the Global Capital Security to be increased accordingly. If no
Initial Global Capital Securities are then outstanding, the Trust
shall issue and the Institutional Trustee shall authenticate, upon
written order of any Administrator, an appropriate number of Initial
Capital Securities in global form.
(d) Transfer and Exchange of Global Capital Securities. The
transfer and exchange of Initial Global Capital Securities or Exchange Global
Capital Securities or beneficial interests therein shall be effected through
the Depositary, in accordance with this Declaration (including applicable
restrictions on transfer set forth in the Restricted Securities Legend) and the
procedures of the Depositary therefor. Notwithstanding any other provisions of
this Declaration, a Global Capital Security may not be transferred as a whole
except by the Depositary to a nominee of the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
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(e) Transfer of a Beneficial Interest in an Initial Global Capital
Security for a Definitive Capital Security.
(i) Any Person having a beneficial interest in an Initial
Global Capital Security that is being transferred or exchanged
pursuant to an effective registration statement under the Securities
Act or pursuant to clause (A) or (B) below may upon request, and if
accompanied by the information specified below, exchange such
beneficial interest for an Initial Definitive Capital Security or an
Exchange Definitive Capital Security, as the case may be,
representing the same number of Initial Capital Securities or
Exchange Definitive Capital Securities, as the case may be. Upon
receipt by the Institutional Trustee from the Depositary or its
nominee on behalf of any Person having a beneficial interest in an
Initial Global Capital Security or an Exchange Definitive Capital
Security, as the case may be, of written instructions or such other
form of instructions as is customary for the Depositary or the Person
designated by the Depositary as having such a beneficial interest in
such Global Capital Security and in the case of an Initial Global
Security the following additional information and documents (all of
which may be submitted by facsimile):
(A) if such beneficial interest is being transferred
pursuant to an exemption from registration in accordance with
Rule 144 under the Securities Act: (i) a certification to that
effect from the transferee or transferor and (ii) if the Trust
so requests, additional evidence reasonably satisfactory to it
as to the compliance with the restrictions set forth in the
Restricted Securities legend; or
(B) if such beneficial interest is being transferred to
a Person who is an IAI, but is not a QIB, upon the delivery of
a certificate by the transferee IAI substantially in the form
of Exhibit B hereto and such other opinion, certification
and/or other information as may be reasonably required by the
Trust and the Sponsor, then the Institutional Trustee will
cause, in accordance with the standing instructions and
procedures of the Depositary, the aggregate liquidation amount
of the Global Capital Security to be reduced on its books and
records and, following such reduction, the Administrators will
issue and the Institutional Trustee will authenticate, upon
written order of any Administrator, an appropriate number of
Definitive Capital Securities.
(ii) Definitive Capital Securities issued in exchange for a
beneficial interest in a Global Capital Security pursuant to this
Section 9.2(e) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions
from Clearing Agency Participants or indirect participants or
otherwise, shall instruct the Institutional Trustee. The
Institutional Trustee shall deliver such Capital Securities to the
Persons in whose names such Capital Securities are so registered in
accordance with the instructions of the Depositary.
(f) Authentication of Definitive Capital Securities.
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If at any time:
(i) the Depositary notifies the Institutional Trustee and the
Administrators that the Depositary is unwilling or unable to continue
as Depositary for the Global Capital Securities and a successor
Depositary for the Global Capital Securities is not appointed by the
Trust at the direction of the Sponsor within 90 days after delivery
of such notice; or
(ii) the Administrators notify the Institutional Trustee in
writing to issue Definitive Capital Securities under this
Declaration, then the Trust will execute, and the Institutional
Trustee, upon receipt of a written order of the Trust signed by one
Administrator requesting the authentication and delivery of
Definitive Capital Securities to the Persons designated by the Trust,
will authenticate and deliver Definitive Capital Securities, in an
aggregate principal amount equal to the principal amount of Global
Capital Securities, in exchange for such Global Capital Securities.
(g) Legend.
Except as permitted by Section 9.2(a), each Initial Capital Security
certificate evidencing the Rule 144A Global Capital Securities and the
Restricted Definitive Capital Securities (and all Initial Capital Securities
issued in exchange therefor or substitution thereof) shall bear a legend (the
Restricted Securities Legend) in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH NATIONAL COMMERCE
BANCORPORATION (THE COMPANY) OR NATIONAL COMMERCE CAPITAL TRUST I (THE TRUST)
OR ANY AFFILIATE OF THE COMPANY OR THE TRUST WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF THIS SECURITY) (THE RESALE RESTRICTIONS TERMINATION DATE)
ONLY (A) TO THE COMPANY OR THE TRUST, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (RULE 144A),
TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED
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INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTS RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM
IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED
FROM THE COMPANY OR THE TRUST. THE HOLDER OF THIS SECURITY AGREES THAT IT WILL
COMPLY WITH THE FOREGOING RESTRICTIONS. SECURITIES OWNED BY A PURCHASER THAT
IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTIONS TERMINATION DATE.
[THIS SECURITY MAY BE DEEMED TO BE EQUITY INTERESTS IN THE TRUST FOR
PURPOSES OF APPLYING ERISA AND SECTION 4975 OF THE CODE, THIS SECURITY MAY NOT
BE PURCHASED OR HELD BY ANY EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL
RETIREMENT ACCOUNT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (ERISA), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE CODE) (EACH, A PLAN), ANY ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY PLANS INVESTMENT IN THE
ENTITY (A PLAN ASSET ENTITY) OR ANY PERSON INVESTING PLAN ASSETS OF ANY PLAN,
UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE
UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION.
IF A PURCHASER OR HOLDER OF THIS SECURITY THAT IS A PLAN OR A PLAN ASSET ENTITY
ELECTS TO RELY ON AN EXEMPTION OTHER THAN PTCE 96-23, 95-60, 91-38, 90-1 OR
84-14, THE COMPANY AND THE TRUST MAY REQUIRE A SATISFACTORY OPINION OF COUNSEL
OR OTHER EVIDENCE WITH RESPECT TO THE AVAILABILITY OF SUCH EXEMPTION FOR SUCH
PURCHASE AND HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST
THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF
THAT EITHER (A) IT IS NOT A PLAN OR A PLAN ASSETS ENTITY AND IS NOT PURCHASING
SUCH SECURITIES ON BEHALF OF OR WITH PLAN ASSETS OF ANY PLAN OR (B)(I) IT IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23, 95-60, 91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE
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EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING AND (II) THE COMPANY AND THE
ADMINISTRATORS ARE NOT FIDUCIARIES, WITHIN THE MEANING OF SECTION 3(21) OF
ERISA AND THE REGULATIONS THEREUNDER, WITH RESPECT TO ITS INTEREST IN THIS
SECURITY.]
(h) Cancellation or Adjustment of Global Capital Security. At such
time as all beneficial interests in a Global Capital Security have either been
exchanged for Definitive Capital Securities to the extent permitted by this
Declaration or redeemed, repurchased or canceled in accordance with the terms
of this Declaration, such Global Capital Security shall be returned to the
Depositary for cancellation or retained and canceled by the Institutional
Trustee. At any time prior to such cancellation, if any beneficial interest in
a Global Capital Security is exchanged for Definitive Capital Securities,
Capital Securities represented by such Global Capital Security shall be reduced
and an adjustment shall be made on the books and records of the Institutional
Trustee (if it is then the Securities custodian for such Global Capital
Security) with respect to such Global Capital Security, by the Institutional
Trustee to reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges of Capital
Securities.
(i) To permit registrations of transfers and exchanges, the
Trust shall execute and the Institutional Trustee shall
authenticate Definitive Capital Securities and Global Capital
Securities at the Registrar's request.
(ii) Registrations of transfers or exchanges will be effected
without charge, but only upon payment (with such indemnity as
the Registrar or the Sponsor may require) in respect of any tax
or other governmental charge that may be imposed in relation to
it.
(iii) The Registrar shall not be required to register the
transfer of or exchange of any Capital Security during a period
beginning at the opening of business 15 days before the day of
any selection of any Capital Security for redemption set forth
in the terms and ending at the close of business on the
earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Capital Securities
to be redeemed.
(iv) All Capital Securities issued upon any registration of
transfer or exchange pursuant to the terms of this Declaration
shall evidence the same security and shall be entitled to the
same benefits under this Declaration as the Capital Securities
surrendered upon such registration of transfer or exchange.
(j) No Obligation of the Institutional Trustee.
(i) The Institutional Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Capital Security, a
Clearing Agency Participant or other
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Person with respect to the accuracy of the records of the Clearing
Agency or its nominee or of any Participant thereof, with respect to
any ownership interest in the Capital Securities or with respect to
the delivery to any Clearing Agency Participant, beneficial owner or
other Person (other than the Clearing Agency) or any notice
(including any notice of redemption) or the payment of any amount,
under or with respect to such Capital Securities. All notices and
communications to be given to the Holders and all payments to be made
to Holders under the Capital Securities shall be given or made only
to or upon the order of the registered Holders (which shall be the
Clearing Agency or its nominee in the case of a Global Capital
Security). The rights of beneficial owners in any Global Capital
Security shall be exercised only through the Clearing Agency subject
to the applicable rules and procedures of the Clearing Agency. The
Institutional Trustee may conclusively rely and shall be fully
protected in relying upon information furnished by the Clearing
Agency or any agent thereof with respect to its Participants and any
beneficial owners.
(ii) The Institutional Trustee and Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Declaration or
under applicable law with respect to any transfer of any interest in
any Capital Security (including any transfers between or among
Clearing Agency Participants or beneficial owners in any Global
Capital Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and
to do so if and when expressly required by, the terms of this
Declaration, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
SECTION 9.3 Deemed Security Holders. The Trust, the Administrators,
the Trustees, the Paying Agent, the Transfer Agent or the Registrar may treat
the Person in whose name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of
any Person, whether or not the Trust, the Administrators, the Trustees, the
Paying Agent, the Transfer Agent or the Registrar shall have actual or other
notice thereof.
SECTION 9.4 Notices to Clearing Agency. Whenever a notice or other
communication to the Capital Security Holders is required under this
Declaration, unless and until Definitive Capital Securities shall have been
issued to the beneficial owners of Capital Securities pursuant to Section
9.2(e) or Section 9.2(f), the Administrators shall give all such notices and
communications specified herein to be given to the Capital Security Holders to
the Clearing Agency, and shall have no notice obligations to the beneficial
owners of Capital Securities.
SECTION 9.5 Appointment of Successor Clearing Agency. If any
Clearing Agency elects to discontinue its services as securities depositary
with respect to the Capital Securities,
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the Administrators, in their sole discretion, shall appoint a successor
Clearing Agency with respect to such Capital Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability. (a) Except as expressly set forth in this
Declaration, the Securities Guarantees and the terms of the Securities, the
Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of the
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of
the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trusts assets.
(c) Pursuant to 3803(a) of the Business Trust Act, the Holders of
the Capital Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of the authority conferred on such Indemnified Person by
this Declaration or by law, except that an Indemnified Person shall be liable
for any such loss, damage or claim incurred by reason of such Indemnified
Persons negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Persons
professional or expert competence and, if selected by such Indemnified Person,
has been selected by such Indemnified Person with reasonable care by or on
behalf of the Trust, including information, opinions, reports or statements as
to the value and amount of
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the assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.
SECTION 10.3 Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity (other than the duties imposed on the
Institutional Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of the Indemnified Person.
(b) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its discretion or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any interest
of or factors affecting the Trust or any other Person; or
(ii) in its good faith or under another express standard, the
Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 10.4 Indemnification. (a) (i) The Sponsor shall indemnify,
to the full extent permitted by law, any Indemnified Person who was or is a
party to any completed action, suit or proceeding, whether civil,
administrative or investigative (other than an action by or in the right of the
Trust) by reason of the fact that he is or was an Indemnified Person against
expenses (including attorneys fees and expenses), arising out of or in
connection with the creation, operation or dissolution of the Trust or any act
or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified Person by
this Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with respect
to such acts or omissions. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration.
(ii) To the extent that an Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of
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an action without admission of liability) in defense of any action,
suit or proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4 (a), or in defense of any claim, issue or matter
therein, he shall be indemnified, to the full extent permitted by
law, against expenses (including attorneys fees and expenses)
actually and reasonably incurred by him in connection therewith.
(iii) The indemnification of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 10.4 (a)
shall not be deemed exclusive of any other rights to which those
seeking indemnification of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the
Sponsor or Capital Security Holders of the Trust or otherwise, both
as to action in his official capacity and as to action in another
capacity while holding such office. All rights to indemnification
under this Section 10.4(a) shall be deemed to be provided by a
contract between the Sponsor and each Indemnified Person who serves
in such capacity at any time while this Section 10.4 (a) is in
effect. Any repeal or modification of this Section 10.4(a) shall not
affect any rights or obligations then existing.
(iv) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any Person who is or was an Indemnified Person
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not
the Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 10.4 (a).
(v) For purposes of this Section 10.4 (a), references to the
Trust shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any
Person who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 10.4 (a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(vi) The indemnification of expenses provided by, or granted
pursuant to, this Section 10.4(a) shall, unless otherwise provided
when authorized or ratified, continue as to a Person who has ceased
to be an Indemnified Person and shall inure to the benefit of the
heirs, executors and administrators of such a Person.
SECTION 10.5 Outside Businesses. Any Covered Person, the Sponsor,
the Delaware Trustee and the Institutional Trustee (subject to Section 5.3(c))
may engage in or possess an interest in other business ventures of any nature
or description, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the Holders of Securities shall have
no rights by virtue of this Declaration in and to such independent ventures or
the
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income or profits derived therefrom, and the pursuit of any such venture, even
if competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, or the
Institutional Trustee shall be obligated to present any particular investment
or other opportunity to the Trust even if such opportunity is of a character
that, if presented to the Trust, could be taken by the Trust, and any Covered
Person, the Sponsor, the Delaware Trustee and the Institutional Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Institutional
Trustee may engage or be interested in any financial or other transaction with
the Sponsor or any Affiliate of the Sponsor, or may act as depositary for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Sponsor or its Affiliates.
SECTION 10.6 Compensation; Fee. The Sponsor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon written request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision of
this Declaration (including the reasonable compensation and the expenses and
disbursements of their respective agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith.
The provisions of this Section 10.6 shall survive the dissolution of
the Trust and the termination of this Declaration and the removal or
resignation of any Trustee.
No Trustee may claim any lien or charge on any property of the Trust
as a result of any amount due pursuant to this Section 10.6.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year. The fiscal year (Fiscal Year) of the
Trust shall be the calendar year, or such other year as is required by the
Code.
SECTION 11.2 Certain Accounting Matters. (a) At all times during
the existence of the Trust, the Administrators shall keep, or cause to be kept,
full books of account, records and supporting documents, which shall reflect in
reasonable detail each transaction of the Trust. The books of account shall be
maintained on the accrual method of accounting, in
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accordance with generally accepted accounting principles, consistently applied.
The books of account and the records of the Trust shall be examined by and
reported upon as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Administrators.
(b) The Administrators shall cause to be prepared and delivered to
each of the Holders of Securities, within 90 days after the end of each Fiscal
Year of the Trust, annual financial statements of the Trust, including a
balance sheet of the Trust as of the end of such Fiscal Year, and the related
statements of income or loss which shall be examined by and reported upon by a
firm of independent certified public accountants selected by the
Administrators.
(c) The Administrators shall cause to be duly prepared and
delivered to each of the Holders of Securities any annual United States federal
income tax information statement required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the
Code to deliver any such statement at a later date, the Administrators shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Administrators shall cause to be duly prepared and filed an
annual United States federal income tax return on a Form 1041 or such other
form required by United States federal income tax law, and any other annual
income tax returns required to be filed by the Administrators on behalf of the
Trust with any state or local taxing authority.
SECTION 11.3 Banking. The Trust shall maintain one or more bank
accounts in the name and for the sole benefit of the Trust; provided, however,
that all payments of funds in respect of the Debentures held by the
Institutional Trustee shall be made directly to the Property Account and no
other funds of the Trust shall be deposited in the Property Account. The sole
signatories for such accounts (including the Property Account) shall be
designated by the Institutional Trustee.
SECTION 11.4 Withholding. The Institutional Trustee or any Paying
Agent and the Administrators shall comply with all withholding requirements
under United States federal, state and local law. The Institutional Trustee or
any Paying Agent shall request, and the Holders shall provide to the
Institutional Trustee or any Paying Agent, such forms or certificates as are
necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Institutional Trustee or any Paying Agent to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Administrators
shall file required forms with applicable jurisdictions and, unless an
exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To
the extent that the Institutional Trustee or any Paying Agent is required to
withhold and pay over any amounts to any authority with respect to
distributions or allocations to any Holder, the amount withheld shall be deemed
to be a Distribution in the amount of the withholding to the
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Holder. In the event of any claimed overwithholding, Holders shall be limited
to an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Institutional
Trustee or any Paying Agent may reduce subsequent Distributions by the amount
of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments. (a) Except as otherwise provided in this
Declaration or by any applicable terms of the Securities, this Declaration may
only be amended by a written instrument approved and executed by
(i) the Institutional Trustee;
(ii) the Holders of the Common Securities; and
(iii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee, the
Delaware Trustee.
(b) Notwithstanding any other provision of this Article XII, no
amendment shall be made, and any such purported amendment shall be void and
ineffective:
(i) unless the Institutional Trustee shall have first
received
(A) an Officers Certificate from each of the Trust and
the Sponsor that such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of the
Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms
of the Securities); and
(ii) if the result of such amendment would be to
(A) cause the Trust to fail to continue to be
classified for purposes of United States federal income
taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers of
the Institutional Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act.
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(c) Except as provided in Section 12.1(d), (e) or (h), no amendment
shall be made, and any such purported amendment shall be void and ineffective
unless the Holders of a Majority in liquidation amount of the Capital
Securities shall have consented to such amendment.
(d) In addition to and notwithstanding any other provision in this
Declaration, without the consent of each affected Holder, this Declaration may
not be amended to (i) change the amount or timing of any distribution on the
Securities or otherwise adversely affect the amount of any distribution
required to be made in respect of the Securities as of a specified date or (ii)
restrict the right of a Holder to institute suit for the enforcement of any
such payment on or after such date.
(e) Section 9.1(b) and 9.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders of the Securities.
(f) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities.
(g) the rights of the Holders of the Capital Securities under
Article V to increase or decrease the number of, and appoint and remove,
Trustees shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Capital Securities.
(h) Subject to Section 12.1(c), this Declaration may be amended by
the Institutional Trustee and the Holders of a Majority in the liquidation
amount of the Common Securities without the consent of the Holders of the
Capital Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of
this Declaration;
(iii) add to the covenants, restrictions or obligations
of the Sponsor;
(iv) to modify, eliminate or add to any provision of this
Declaration to such extent as may be necessary to ensure that the
Trust will be classified for United States federal income tax
purposes at all times as a grantor trust and will not be required to
register as an investment company under the Investment Company Act
(including without limitation to conform to any change in Rule 3a-5,
Rule 3a-7 or any other applicable rule under the Investment Company
Act or written change in interpretation or application thereof by any
legislative body, court, government agency or regulatory authority)
which amendment does not have a material adverse effect on the right,
preferences or privileges of the Holders of Securities; provided,
however, that no such modification, elimination or addition referred
to in clauses (i), (ii) or (iii) shall adversely affect the powers,
preferences or special rights of Holders
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of Capital Securities; and such amendments of this Declaration shall
become effective when notice thereof is given to the Institutional
Trustee.
SECTION 12.2 Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Administrators (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms
of the Securities or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading, if any. The Administrators
shall call a meeting of the Holders of such class if directed to do so by the
Holders of at least 10% in liquidation amount of such class of Securities.
Such direction shall be given by delivering to the Administrators one or more
calls in a writing stating that the signing Holders of the Securities wish to
call a meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holders of the Securities calling a meeting shall
specify in writing the Certificates held by the Holders of the Securities
exercising the right to call a meeting and only those Securities represented by
such Certificates shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph has been
met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of the
Securities:
(i) notice of any such meeting shall be given to all the
Holders of the Securities having a right to vote thereat at least 7
days and not more than 60 days before the date of such meeting.
Whenever a vote, consent or approval of the Holders of the Securities
is permitted or required under this Declaration or the rules of any
stock exchange on which the Capital Securities are listed or admitted
for trading, if any, such vote, consent or approval may be given at a
meeting of the Holders of the Securities. Any action that may be
taken at a meeting of the Holders of the Securities may be taken
without a meeting if a consent in writing setting forth the action so
taken is signed by the Holders of the Securities owning not less than
the minimum amount of Securities in liquidation amount that would be
necessary to authorize or take such action at a meeting at which all
Holders of the Securities having a right to vote thereon were present
and voting. Prompt notice of the taking of action without a meeting
shall be given to the Holders of the Securities entitled to vote who
have not consented in writing. The Administrators may specify that
any written ballot submitted to the Holders of the Securities for the
purpose of taking any action without a meeting shall be returned to
the Trust within the time specified by the Administrators;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy
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shall be valid after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Holder of the Securities executing
it. Except as otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by the
General Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation; each meeting of the Holders
of the Securities shall be conducted by the Administrators or by such
other Person that the Administrators may designate;
(iii) each meeting of the Holders shall be conducted by
the Administrators or by such other Person that the Administrators
may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the Capital Securities are then listed
for trading, if any, otherwise provides, the Administrators, in their
sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time,
place or purpose of any meeting at which any matter is to be voted on
by any Holders of the Securities, waiver of any such notice, action
by consent without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any other matter
with respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional
Trustee. The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustees acceptance of
its appointment as Institutional Trustee, that:
(a) the Institutional Trustee is a New York banking corporation
with trust powers, duly organized, validly existing and in good standing under
the laws of the State of New York with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Declaration;
(b) the execution, delivery and performance by the Institutional
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Institutional Trustee. This Declaration has been
duly executed and delivered by the
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Institutional Trustee, and it constitutes a legal, valid and binding obligation
of the Institutional Trustee, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors rights generally and to
general principles of equity (regardless of whether considered in a proceeding
in equity or at law);
(c) the execution, delivery and performance of this Declaration by
the Institutional Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Institutional Trustee;
(d) no consent, approval or authorization of, or registration with
or notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Institutional Trustee of this
Declaration;
(e) at the Closing Date, the Institutional Trustee has not
knowingly created any liens or encumbrances on the Trust Securities;
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants to
the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustees acceptance of its appointment as
Delaware Trustee, that:
(a) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with trust power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Declaration.
(b) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration. This
Declaration has been duly executed and delivered by the Delaware Trustee. This
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors rights generally and to
general principles of equity (regardless of whether considered in a proceeding
in equity or at law).
(c) No consent, approval or authorization of, or registration with
or notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration.
(d) The execution, delivery and performance of this Declaration by
the Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee.
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(e) The Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware and, in either case, a
Person that satisfies for the Trust the requirements of Section 3807 of the
Business Trust Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices. All notices provided for in this Declaration
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Administrators at the
Trusts mailing address set forth below (or such other address as the Trust may
give notice of to the Holders of the Securities:
c/o National Commerce Bancorporation
Xxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Secretary
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of to
the Holders of the Securities):
The Bank of New York (Delaware)
00 Xxxxx Xxxx Xxxxxx
Xxxxx 00X
Xxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
(c) if given to the Institutional Trustee, at the Institutional
Trustees mailing address set forth below (or such other address as the
Institutional Trustee may give notice of to the Holders of the Securities):
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
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(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice of to the Trust):
National Commerce Bancorporation
Xxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Secretary
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 14.2 Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to the principles of conflict of laws of the State of
Delaware or any other jurisdiction that would call for the application of the
law of any jurisdiction other than the State of Delaware; provided, however,
that there shall not be applicable to the Trust, the Trustees or this
Declaration any provision of the laws (statutory or common) of the State of
Delaware pertaining to trusts that relate to or regulate, in a manner
inconsistent with the terms hereof (a) the filing with any court or
governmental body or agency of trustee accounts or schedules of trustee fees
and charges, (b) affirmative requirements to post bonds for trustees, officers,
agents or employees of a trust, (c) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or disposition of
real or personal property, (d) fees or other sums payable to trustees,
officers, agents or employees of a trust, (e) the allocation of receipts and
expenditures to income or principal, (f) restrictions or limitations on the
permissible nature, amount or concentration of trust investments or
requirements relating to the titling, storage or other manner of holding or
investing trust assets or (g) the establishment of fiduciary or other standards
of responsibility or limitations on the acts or powers of trustees that are
inconsistent with the limitations or liabilities or authorities and powers of
the Trustees as set forth or referenced in this Declaration. Section 3540 of
Title 12 of the Delaware Code shall not apply to the Trust.
SECTION 14.3 Intention of the Parties. It is the intention of the
parties hereto that the Trust be classified for United States federal income
tax purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
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SECTION 14.4 Headings. Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
SECTION 14.5 Agreement Not to Petition. Each of the Trustees, the
Administrators and the Sponsor agree for the benefit of the Holders that, until
at least one year and one day after the Trust has been terminated in accordance
with Article VIII, they shall not file, or join in the filing of, a petition
against the Trust under any bankruptcy, insolvency, reorganization or other
similar law (including, without limitation, the United States Bankruptcy Code)
(collectively, Bankruptcy Laws) or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the event the
Sponsor takes action in violation of this Section 14.5, the Institutional
Trustee agrees, for the benefit of Holders, that at the expense of the Sponsor,
it shall file an answer with the bankruptcy court or otherwise properly contest
the filing of such petition by the Sponsor against the Trust or the
commencement of such action and raise the defense that the Sponsor has agreed
in writing not to take such action and should be estopped and precluded
therefrom and such other defenses, if any, as counsel for the Institutional
Trustee or the Trust may assert. If any Trustee or Administrator takes action
in violation of this Section 14.5, the Sponsor agrees, for the benefit of the
Holders, that at the expense of the Sponsor, it shall file an answer with the
bankruptcy court or otherwise properly contest the filing of such petition by
such Person against the Sponsor or the commencement of such action and raise
the defense that such Person has agreed in writing not to take such action and
should be estopped and precluded therefrom and such other defenses, if any, as
counsel for the Sponsor of the Trust may assert. The provisions of this
Section 14.5 shall survive the termination of this Declaration.
SECTION 14.6 Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns
of such party shall be deemed to be included, and all covenants and agreements
in this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so
expressed.
SECTION 14.7 Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person or
circumstance, shall be held invalid, the remainder of this Declaration, or the
application of such provision to persons or circumstances other than those to
which it is held invalid, shall not be affected thereby.
SECTION 14.8 Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration may be executed by
the affixing of the signature of each of the Trustees and Administrators to any
of such counterpart signature pages. All of such counterpart signature pages
shall be read as though one, and they shall have the same force and effect as
though all of the signers had signed a single signature page.
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
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THE BANK OF NEW YORK
(DELAWARE)
as Delaware Trustee
By:
-----------------------------
Name:
Title
THE BANK OF NEW YORK
as Institutional Trustee
By:
-----------------------------
Name:
Title:
NATIONAL COMMERCE
BANCORPORATION, as Sponsor
By:
------------------------------
Name:
Title:
NATIONAL COMMERCE CAPITAL
TRUST I
By:
Xxx X. Xxxxxxx, as Administrator
By:
Xxxxx X. Xxxxxx, as Administrator
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By:
Xxxxxx X. Xxxxx, as Administrator
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ANNEX I
TERMS OF
FLOATING RATE CAPITAL TRUST PASS-THROUGH SECURITIES(SM) (TRUPS(SM))(2)
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of March 27, 1997 (as amended from time to time, the
Declaration), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in the
Declaration, as defined in the Offering Memorandum referred to below):
1. Designation and Number
(a) Capital Securities. 50,000 Capital Securities of
National Commerce Capital Trust I (the Trust), with an aggregate stated
liquidation amount with respect to the assets of the Trust of fifty million
dollars ($50,000,000) and a stated liquidation amount with respect to the
assets of the Trust of $1,000 per Capital Security, are hereby designated for
the purposes of identification only as the Floating Rate Capital Trust
Pass-through Securities(SM) (the Capital Securities). The Capital Security
Certificates evidencing the Capital Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage, custom or practice
or to conform to the rules of any stock exchange on which the Capital
Securities are listed, if any.
(b) Common Securities. 1,547 Common Securities of the Trust
(the Common Securities). The Common Security Certificates evidencing the
Common Securities shall be substantially in the form of Exhibit A-3 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
2. Distributions
(a) Distributions payable on each Security will be payable at
a variable annual rate equal to LIBOR plus 0.98% (the Coupon Rate) of the
stated liquidation amount of $1,000 per Security, such rate being the rate of
interest payable on the Debentures to be held by the
----------------------------------
(2) Salomon Brothers Inc has filed applications with the United
States Patent and Trademark Office for the registration of the Capital Trust
Pass-through Securities and the TRUPS service marks.
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Institutional Trustee. Except as set forth below in respect of an Extension
Period, Distributions in arrears for more than one quarterly period will bear
interest thereon compounded quarterly at the Coupon Rate (to the extent
permitted by applicable law). The term Distributions as used herein includes
cash distributions and any such compounded distributions payable unless
otherwise stated. A Distribution is payable only to the extent that payments
are made in respect of the Debentures held by the Institutional Trustee and to
the extent the Institutional Trustee has funds available therefor. The amount
of Distributions payable for any period will be computed for any full quarterly
period on the basis of the actual number of days elapsed in a year of twelve
30-day months.
(b) Distributions on the Securities will be cumulative, will
accrue from the date of original issuance, and will be payable, subject to
extension of distribution payment periods as described herein, quarterly in
arrears on the first day of January, April, July and October of each year,
commencing on July 1, 1997 (each a Distribution Payment Date) when, as and if
available for payment. The Debenture Issuer has the right under the Indenture
to defer payments of interest on the Debentures by extending the interest
payment period (each an Extension Period) at any time and from time to time on
the Debentures, subject to the conditions described below, although such
interest would continue to accrue on the Debentures at a variable annual rate
equal to LIBOR plus 0.98% compounded quarterly to the extent permitted by law
during any Extension Period. If such right is exercised, quarterly
distributions on the Securities will also be deferred (though such
distributions would continue to accrue at the variable annual rate equal to
LIBOR plus 0.98%, compounded quarterly to the extent permitted by law) during
any Extension Period. Such right to extend any interest payment period in
respect of the Debentures is limited to Extension Periods, each not exceeding
20 consecutive quarterly periods, provided, however, that no Extension Period
shall be initiated while accrued interest from a prior, completed Extension
Period is unpaid or while the Debenture Issuer is in default in the payment of
interest that has become due and payable on the Debentures; and, provided,
further, that no Extension Period shall extend beyond the maturity of the
Debentures. In the event that the Debenture Issuer exercises this right, then,
during any Extension Period (a) the Debenture Issuer shall not declare or pay
dividends on, make a distribution with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock or rights to acquire such capital stock (other than (i) purchases or
acquisitions of shares of any such capital stock or rights to acquire such
capital stock in connection with the satisfaction by the Debenture Issuer of
its obligations under any employee benefit plans, (ii) as a result of a
reclassification of the Debenture Issuers capital stock or rights to acquire
such capital stock or the exchange or conversion of one class or series of the
Debenture Issuers capital stock or rights to acquire such capital stock for
another class or series of the Debenture Issuers capital stock or rights to
acquire such capital stock, (iii) the purchase of fractional interests in
shares of the Debenture Issuers capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, (iv) dividends and distributions made on the Debenture Issuers
capital stock or rights to acquire such capital stock with the Debenture
Issuers capital stock or rights to acquire such capital stock or (v) any
declaration of a dividend in connection with the implementation of a
shareholder rights plan, or the issuance of stock
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under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto), or make guarantee payments (other than payments under
the Capital Securities Guarantee and the Common Securities Guarantee for the
Trust) with respect to the foregoing, and (b) the Debenture Issuer shall not
make any payment of interest or principal on or repay, repurchase or redeem any
debt securities issued by the Debenture Issuer that rank pari passu with or
junior to such Debentures. Prior to the termination of any such Extension
Period in respect of the Debentures, the Debenture Issuer may further extend
the interest payment period; provided that each such Extension Period in
respect of the Debentures, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarterly periods or extend
beyond the maturity of the Debentures. Upon the termination of any Extension
Period in respect of the Debentures and the payment of all amounts then due,
the Debenture Issuer may commence a new Extension Period, subject to the above
requirements. If Distributions are deferred, the Distributions due shall be
paid on the date that the related Extension Period terminates, or, if such date
is not a Distribution Payment Date, on the immediately following Distribution
Payment Date, to Holders of the Securities as they appear on the books and
records of the Trust on the record date immediately preceding such date.
Distributions on the Securities must be paid on the dates payable (after giving
effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such distributions in the Property Account of the
Trust. The Trusts funds available for Distribution to the Holders of the
Securities will be limited to payments received from the Debenture Issuer. The
payment of Distributions out of moneys held by the Trust is guaranteed by the
Guarantor pursuant to the Securities Guarantees.
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates. While the Capital Securities are held solely in
book-entry only form, the relevant record dates shall be one Business Day prior
to the relevant payment dates which payment dates correspond to the interest
payment dates on the Debentures. Such Distributions will be paid through the
Institutional Trustee who will hold amounts received in respect of the
Debentures in the Property Account for the benefit of the Holders of the
Securities. Subject to any applicable laws and regulations and the provisions
of the Declaration, each such payment in respect of the Capital Securities will
be made as described under the heading Description of the Capital Securities --
Book-Entry Only Issuance -- The Depository Trust Company in the Offering
Memorandum dated March 20, 1997 of the Trust as amended or supplemented form
time to time (the Offering Memorandum). The relevant record dates for the
Common Securities shall be the same record dates as for the Capital Securities.
At any time when the Capital Securities are not held solely in book-entry only
form, the relevant record dates shall be selected by the Administrators, which
dates shall be 15 days before the relevant payment dates. Distributions
payable on any Securities that are not punctually paid on any Distribution
Payment Date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, as the case may be, when due (taking into account
any Extension Period), will cease to be payable to the Person in whose name
such Securities are registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
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84
determined in accordance with the Indenture. If any date on which
Distributions are payable on the Securities is not a Business Day, then payment
of the Distribution payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such payment date.
(d) In the event that there is any money or other property
held by or for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata (as defined herein) among the Holders of the
Securities.
3. Liquidation Distribution Upon Dissolution
In the event of the voluntary or involuntary liquidation,
dissolution, winding-up or termination of the Trust (each a Liquidation) other
than in connection with a redemption of the Debentures, the Holders of the
Securities will be entitled to receive out of the assets of the Trust available
for distribution to Holders of the Securities, after satisfaction of
liabilities to creditors of the Trust (to the extent not satisfied by the
Company), distributions equal to the aggregate of the liquidation amount of
$1,000 per Security plus accrued and unpaid Distributions thereon to the date
of payment (such amount being the Liquidation Distribution), unless in
connection with such Liquidation, the Debentures in an aggregate stated
principal amount equal to the aggregate liquidation amount of such Securities,
with an interest rate equal to the Coupon Rate of, and bearing accrued and
unpaid interest in an amount equal to the accrued and unpaid Distributions on,
and having the same record date as, such Securities, after paying or making
reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act, shall be distributed
on a Pro Rata basis to the Holders of the Securities in exchange for such
Securities.
The Sponsor, as the Holder of all of the Common Securities, has the
right at any time to dissolve the Trust (including without limitation upon the
occurrence of a Tax Event, a Capital Treatment Event or an Investment Company
Event), subject to the receipt by the Company of prior approval from the Board
of Governors of the Federal Reserve System (the Federal Reserve), if then
required under applicable capital guidelines or policies of the Federal Reserve
and, after satisfaction of liabilities to creditors of the Trust, cause the
Debentures to be distributed to the Holders of the Securities on a Pro Rata
basis in accordance with the aggregate liquidation amount thereof.
The Trust shall dissolve on the first to occur of (i) March 27, 2052,
the expiration of the term of the Trust, (ii) a Bankruptcy Event with respect
to the Sponsor, Trust or the Debenture Issuer, (iii) (other than in connection
with a merger, consolidation or similar transaction not prohibited by the
Indenture, this Declaration or the Securities Guarantees, as the case may be)
the filing of a certificate of dissolution or its equivalent with respect to
the Trust; upon the consent of the Holders of a Majority in liquidation amount
of the Securities voting together as a single class to file a certificate of
cancellation with respect to the Trust,
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85
or upon the revocation of the charter of the Sponsor and the expiration of 90
days after the date of revocation without a reinstatement thereof, (iv) the
distribution to the Holders of the Securities of the Debentures, upon exercise
of the right of the Holder of all of the outstanding Common Securities to
terminate Trust as described above, (v) the entry of a decree of a judicial
dissolution of the Sponsor or the Trust, or (vi) when all of the Securities
shall have been called for redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders in accordance with the terms of the
Securities. As soon as practicable after the dissolution of the Trust and upon
completion of the winding up of the Trust, the Trust shall terminate upon the
filing of a certificate of cancellation with the Secretary of State of the
State of Delaware.
If a Liquidation of the Trust occurs as described in clause (i),
(ii), (iii) or (v) in the immediately preceding paragraph, the Trust shall be
liquidated by the Trustees of the Trust as expeditiously as such Trustees
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Trust, to the Holders of the Trust Securities, the Debentures
on a Pro Rata basis to the extent not satisfied by the Company, unless such
distribution is determined by the Institutional Trustee not to be practical, in
which event such Holders will be entitled to receive out of the assets of the
Trust available for distribution to the Holders, after satisfaction of
liabilities of creditors of the Trust to the extent not satisfied by the
Company, an amount equal to the Liquidation Distribution. An early Liquidation
of the Trust pursuant to clause (iv) above shall occur if the Institutional
Trustee determines that such Liquidation is possible by distributing, after
satisfaction of liabilities to creditors of Trust, to the Holders of the Trust
Securities on a Pro Rata basis, the Debentures, and such distribution occurs.
If, upon any such Liquidation the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on such Capital Securities shall be paid to the Holders of the
Trust Securities on a Pro Rata basis, except that if an Event of Default has
occurred and is continuing, the Capital Securities shall have a preference over
the Common Securities with regard to such distributions.
Upon any such Liquidation of the Trust involving a distribution of
the Debentures, if at the time of such Liquidation, the Capital Securities were
rated by at least one nationally-recognized statistical rating organization,
the Debenture Issuer will use its reasonable best efforts to obtain from at
least one such or other rating organization a rating for the Debentures.
After the date for any distribution of the Debentures upon
dissolution of the Trust, (i) the Securities of the Trust will be deemed to be
no longer outstanding, (ii) the Depositary or its nominee, as the record holder
of the Capital Securities, will receive a registered security in global form or
certificates representing the Debentures to be delivered upon such
distribution, and (iii) any certificates representing the Capital Securities
not held by the Depositary or its nominee will be deemed to represent such of
the Debentures as have an aggregate principal
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amount equal to the aggregate liquidation amount of, with an interest rate
identical to the distribution rate of, and bearing accrued and unpaid interest
equal to accrued and unpaid distributions on, the Securities until such
certificates are presented to the Debenture Issuer or its agent for transfer or
reissuance.
4. Redemption and Distribution
(a) The Debentures will mature on April 1, 2027. The
Debentures may be redeemed by the Debenture Issuer, in whole or in part, at any
time and from time to time on or after April 1, 2007, at par, plus accrued and
unpaid interest thereon to the date of redemption (the Redemption Price). In
addition, the Debentures may be redeemed by the Debenture Issuer, in whole or
in part, at any time, upon the occurrence and continuation of a Tax Event, a
Capital Treatment Event or an Investment Company Event, at par, together with
accrued and unpaid interest thereon to the date of redemption, within 90 days
following the occurrence of such Tax Event, Capital Treatment Event or
Investment Company Event, as the case may be, upon not less than 30 nor more
than 60 days notice to Holders of such Debentures so long as such Tax Event,
Capital Treatment Event or Investment Company Event, as the case may be, is
continuing. In each case, the right of the Debenture Issuer to redeem the
Debentures is subject to the Debenture Issuer having received prior approval
from the Federal Reserve, if then required under applicable capital guidelines
or policies of the Federal Reserve.
(b) Tax Event means that the Trustees shall have received an
opinion of a nationally recognized independent tax counsel to the Debenture
Issuer experienced in such matters to the effect that, as a result of (a) any
amendment to, clarification of or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or
any political subdivision or taxing authority thereof or therein, (b) any
judicial decision, official administrative pronouncement, ruling, regulatory
procedure, notice or announcement, including any notice or announcement of
intent to adopt such procedures or regulations (an Administrative Action), or
(c) any amendment to, clarification of, or change in the official position or
the interpretation of any Administrative Action or judicial decision that
differs from the theretofore generally accepted position, in each case, by any
legislative body, court, governmental authority or regulatory body,
irrespective of the manner in which such amendment, clarification or change is
made known, which amendment, clarification, or change is effective or such
Administrative Action or decision is announced, in each case, on or after the
date of the Offering Memorandum, there is more than an insubstantial risk that
(i) the Trust is, or will be within 90 days of the date thereof, subject to
United States federal income tax with respect to interest accrued or received
on the Debentures or subject to more than a de minimus amount of other taxes,
duties or other governmental changes, (ii) any portion of interest payable by
the Debenture Issuer to the Trust on the Debentures is not, or within 90 days
of the date thereof will not be, deductible by the Debenture Issuer for United
States federal income tax purposes or (iii) the Debenture Issuer could become
liable to pay on the next date on which any amount would be payable with
respect to the Debentures, any Additional Interest.
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(c) Capital Treatment Event means the Debenture Issuer shall
have received an opinion of independent bank regulatory counsel experienced in
such matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any rules or
regulations thereunder) of the United States or any rules, guidelines or
policies of the Federal Reserve or (b) any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or such pronouncement,
action or decision is announced on or after the date of the Offering
Memorandum, the Debenture Issuer will not be entitled to treat the Capital
Securities or the Debentures, if the Debenture Issuer were to be distributed
following the occurrence of a Tax Event as described in the proviso to this
paragraph, as Tier 1 Capital (or the equivalent thereof) for purposes of the
risk-based capital adequacy guidelines of the Federal Reserve, as then in
effect and applicable to the Debenture Issuer; provided, however, that the
distribution of the Debentures in connection with the Liquidation of the Trust
by the Debenture Issuer shall not in and of itself constitute a Capital
Treatment Event unless such Liquidation shall have occurred in connection with
a Tax Event.
(d) Investment Company Event means the receipt by the
Institutional Trustee of an opinion of counsel rendered by a law firm having a
nationally recognized securities practice, to the effect that, as a result of
the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (Change in 1940 Act Law), the Trust
is or will be considered an investment company which is required to be
registered under the Investment Company Act, which Change in 1940 Act Law
becomes effective or is announced, enacted or promulgated on or after the date
of the Offering Memorandum.
(e) Upon the repayment in full at maturity or redemption in
whole or in part of the Debenture (other than following the distribution of the
Debenture to the Holders of the Trust Securities), the proceeds from such
repayment or payment shall concurrently be applied to redeem Pro Rata at the
applicable Redemption Price, Trust Securities having an aggregate liquidation
amount equal to the aggregate principal amount of the Debenture so repaid or
redeemed; provided, however, that holders of such Trust Securities shall be
given not less than 30 nor more than 60 days notice of such redemption (other
than at the scheduled maturity of the Debenture).
(f) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Capital Securities will be redeemed Pro
Rata and the Capital Securities to be redeemed will be as described in Section
4(h)(ii) below.
(g) The Trust may not redeem fewer than all the outstanding
Capital Securities unless all accrued and unpaid Distributions have been paid
on all Capital Securities for all quarterly Distribution periods terminating on
or before the date of redemption.
(h) Redemption or Distribution Procedures.
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(i) Notice of any redemption of, or notice of
distribution of the Debentures in exchange for, the Securities
(a Redemption/Distribution Notice) will be given by the Trust
by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of
the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given
pursuant to this Section 4(h)(i), a Redemption/ Distribution
Notice shall be deemed to be given on the day such notice is
first mailed by first-class mail, postage prepaid, to Holders
of such Securities. Each Redemption/ Distribution Notice shall
be addressed to the Holders of such Securities at the address
of each such Holder appearing on the books and records of the
Trust. No defect in the Redemption/Distribution Notice or in
the mailing thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect
to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed
shall be redeemed Pro Rata from each Holder of Capital
Securities; provided, however, that, in respect of the Capital
Securities registered in the name of and held of record by the
Depositary or its nominee (or any successor Clearing Agency or
its nominee), the Capital Securities shall be redeemed Pro Rata
in accordance with the procedures of the Depositary, and the
distribution of the proceeds of such redemption will be made to
each Clearing Agency Participant (or Person on whose behalf
such nominee holds such Securities) in accordance with the
procedures applied by such Clearing Agency or nominee.
(iii) If the Securities are to be redeemed and the Trust
gives a Redemption/ Distribution Notice, which notice may only
be issued if the Debentures are redeemed as set out in this
Section 4 (which notice will be irrevocable), then (A) with
respect to the Capital Securities, while the Capital Securities
are in book-entry only form, provided that the Institutional
Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the
Institutional Trustee will deposit irrevocably with the
Depositary or its nominee (or successor Clearing Agency or its
nominee), by 12:00 noon, New York City time, on the redemption
date, funds sufficient to pay the applicable Redemption Price
with respect to the Capital Securities and will give the
Depositary irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Capital Securities, and
(B) with respect to Capital Securities issued in definitive
form and Common Securities, provided that the Institutional
Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the
Institutional Trustee will pay the relevant Redemption Price to
the Holders of such Securities by check mailed to the address
of each such Holder appearing on the books and records of the
Trust on
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the redemption date. If a Redemption/Distribution Notice shall
have been given and funds deposited as required then
immediately prior to the close of business on the date of such
deposit Distributions will cease to accrue on the Securities so
called for redemption and all rights of Holders of such
Securities so called for redemption will cease, except the
right of the Holders of such Securities to receive the
applicable Redemption Price specified in Section 4(a), but
without interest on such Redemption Price. If any date fixed
for redemption of Securities is not a Business Day, then
payment of any such redemption price payable on such date will
be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the Trust
or by the Debenture Issuer as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such Securities
will continue to accrue at the then applicable rate from the
original redemption date to the actual date of payment, in
which case the actual payment date will be considered the date
fixed for redemption for purposes of calculating the Redemption
Price. In the event of any redemption of the Capital
Securities issued by the Trust in part, the Trust shall not be
required to (i) issue, register the transfer of or exchange any
Security during a period beginning at the opening of business
15 days before any selection for redemption of the Capital
Securities and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to
have been given to all Holders of the Capital Securities to be
so redeemed or (ii) register the transfer of or exchange any
Capital Securities so selected for redemption, in whole or in
part, except for the unredeemed portion of any Capital
Securities being redeemed in part.
(iv) Redemption/Distribution Notices shall be sent by
the Administrators on behalf of the Trust to (A) in respect of
the Capital Securities, the Depositary or its nominee (or any
successor Clearing Agency or its nominee) if the Global Capital
Securities have been issued or, if Definitive Capital
Securities have been issued, to the Holders thereof, and (B) in
respect of the Common Securities, to the Holder thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States federal
securities laws), provided that the acquiror is not the Holder
of the Common Securities or the obligor under the Indenture,
the Sponsor or any of its subsidiaries may at any time and from
time to time purchase outstanding Capital Securities by tender,
in the open market or by private agreement.
5. Voting Rights - Capital Securities
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(a) Except as provided under Sections 5(b) and 7 and as
otherwise required by law and the Declaration, the Holders of the Capital
Securities will have no voting rights. The Administrators are required to call
a meeting of the Holders of the Capital Securities if directed to do so by
Holders of at least 10% in liquidation amount of the Capital Securities.
(b) Subject to the requirements of obtaining a tax opinion by
the Institutional Trustee in certain circumstances set forth in the last
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Capital Securities, voting separately as a class, have the right to direct
the time, method, and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under the Declaration, including the
right to direct the Institutional Trustee, as holder of the Debentures, to (i)
exercise the remedies available under the Indenture as the holder of the
Debentures, (ii) waive any past default that is waivable under the Indenture,
or (iii) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable or (iv) consent on
behalf of all the Holders of the Capital Securities to any amendment,
modification or termination of the Indenture or the Debentures where such
consent shall be required, provided, however, that, where a consent or action
under the Indenture would require the consent or act of the holders of greater
than a simple majority in principal amount of Debentures (a Super Majority)
affected thereby, the Institutional Trustee may only give such consent or take
such action at the written direction of the Holders of at least the proportion
in liquidation amount of the Capital Securities outstanding which the relevant
Super Majority represents of the aggregate principal amount of the Debentures
outstanding. If the Institutional Trustee fails to enforce its rights under the
Debentures after the Holders of a Majority in liquidation amount of such
Capital Securities have so directed the Institutional Trustee, to the fullest
extent permitted by law, a Holder of the Capital Securities may institute a
legal proceeding directly against the Debenture Issuer to enforce the
Institutional Trustees rights under the Debentures without first instituting
any legal proceeding against the Institutional Trustee or any other person or
entity. Notwithstanding the foregoing, if an Event of Default has occurred and
is continuing and such event is attributable to the failure of the Debenture
Issuer to pay interest or principal on the Debentures on the date the interest
or principal is payable (or in the case of redemption, the redemption date),
then a Holder of record of the Capital Securities may directly institute a
proceeding for enforcement of payment, on or after the respective due dates
specified in the Debentures, to such Holder directly of the principal of or
interest on the Debentures having an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Securities of such Holder. The
Institutional Trustee shall notify all Holders of the Capital Securities of any
default actually known to the Institutional Trustee with respect to the
Debentures unless (x) such default has been cured prior to the giving of such
notice or (y) the Institutional Trustee determines in good faith that the
withholding of such notice is in the interest of the Holders of such Capital
Securities, except where the default relates to the payment of principal of or
interest on any of the Debentures. Such notice shall state that such Indenture
Event of Default also constitutes an Event of Default hereunder. Except with
respect to directing the time, method and place of conducting a proceeding for
a remedy, the Institutional Trustee shall not take any of the actions described
in clauses (i), (ii) or (iii) above unless the
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Institutional Trustee has obtained an opinion of tax counsel to the effect
that, as a result of such action, the Trust will not be classified as other
than a grantor trust for United States federal income tax purposes.
In the event the consent of the Institutional Trustee, as the holder
of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture, the Institutional
Trustee shall request the direction of the Holders of the Securities with
respect to such amendment, modification or termination and shall vote with
respect to such amendment, modification or termination as directed by a
Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would
require the consent of a Super-Majority, the Institutional Trustee may only
give such consent at the direction of the Holders of at least the proportion in
liquidation amount of such Trust Securities outstanding which the relevant
Super-Majority represents of the aggregate principal amount of the Debentures
outstanding. The Institutional Trustee shall not take any such action in
accordance with the directions of the Holders of the Securities unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect
that, as a result of such action, the Trust will not be classified as other
than a grantor trust for United States federal income tax purposes.
A waiver of an Indenture Event of Default will constitute a waiver of
the corresponding Event of Default hereunder. Any required approval or
direction of Holders of the Capital Securities may be given at a separate
meeting of Holders of the Capital Securities convened for such purpose, at a
meeting of all of the Holders of the Securities in the Trust or pursuant to
written consent. The Institutional Trustee will cause a notice of any meeting
at which Holders of the Capital Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of the Capital Securities. Each such notice
will include a statement setting forth the following information: (i) the date
of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents. No
vote or consent of the Holders of the Capital Securities will be required for
the Trust to redeem and cancel Capital Securities or to distribute the
Debentures in accordance with the Declaration and the terms of the Securities.
Notwithstanding that Holders of the Capital Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Capital Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not entitle the Holder thereof to vote or consent and shall, for
purposes of such vote or consent, be treated as if such Capital Securities were
not outstanding.
In no event will Holders of the Capital Securities have the right to
vote to appoint, remove or replace the Administrators, which voting rights are
vested exclusively in the Sponsor as the Holder of all of the Common Securities
of the Trust. Under certain
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circumstances as more fully described in the Declaration, Holders of Capital
Securities have the right to vote to appoint, remove or replace the
Institutional Trustee and the Delaware Trustee.
6. Voting Rights - Common Securities
(a) Except as provided under Sections 6(b), 6(c) and 7 and as
otherwise required by law and the Declaration, the Common Securities will have
no voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to appoint, remove or
replace any Administrators.
(c) Subject to Section 2.6 of the Declaration and only after
each Event of Default (if any) with respect to the Capital Securities has been
cured, waived, or otherwise eliminated and subject to the requirements of the
second to last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class, may
direct the time, method, and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under the Declaration, including (i)
directing the time, method, place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or power conferred
on the Debenture Trustee with respect to the Debentures, (ii) waive any past
default and its consequences that is waivable under the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, provided, however, that, where a
consent or action under the Indenture would require a Super Majority, the
Institutional Trustee may only give such consent or take such action at the
written direction of the Holders of at least the proportion in liquidation
amount of the Common Securities which the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding. Notwithstanding
this Section 6(c), the Institutional Trustee shall not revoke any action
previously authorized or approved by a vote or consent of the Holders of the
Capital Securities. Other than with respect to directing the time, method and
place of conducting any proceeding for any remedy available to the
Institutional Trustee or the Debenture Trustee as set forth above, the
Institutional Trustee shall not take any action described in (i), (ii) or (iii)
above, unless the Institutional Trustee has obtained an opinion of tax counsel
to the effect that for the purposes of United States federal income tax the
Trust will not be classified as other than a grantor trust on account of such
action. If the Institutional Trustee fails to enforce its rights under the
Declaration to the fullest extent permitted by law, any Holder of the Common
Securities may institute a legal proceeding directly against any Person to
enforce the Institutional Trustees rights under the Declaration, without first
instituting a legal proceeding against the Institutional Trustee or any other
Person.
Any approval or direction of Holders of the Common Securities may be
given at a separate meeting of Holders of the Common Securities convened for
such purpose, at a meeting of all of the Holders of the Securities in the Trust
or pursuant to written consent.
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The Administrators will cause a notice of any meeting at which Holders of the
Common Securities are entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed to each Holder of
the Common Securities. Each such notice will include a statement setting forth
(i) the date of such meeting or the date by which such action is to be taken,
(ii) a description of any resolution proposed for adoption at such meeting on
which such Holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
7. Amendments to Declaration and Indenture
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely
affect the powers, preferences or special rights of the Securities, whether by
way of amendment to the Declaration or otherwise, or (ii) the Liquidation of
the Trust, other than as described in Section 8.1 of the Declaration, then the
Holders of outstanding Securities, voting together as a single class, will be
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of the Holders of at least a
Majority in liquidation amount of the Securities, affected thereby; provided,
however, if any amendment or proposal referred to in clause (i) above would
adversely affect only the Capital Securities or only the Common Securities,
then only the affected class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of such class of Securities.
(b) In the event the consent of the Institutional Trustee as
the holder of the Debentures is required under the Indenture with respect to
any amendment, modification or termination of the Indenture, the Debentures,
the Institutional Trustee shall request the written direction of the Holders of
the Securities with respect to such amendment, modification or termination and
shall vote with respect to such amendment, modification, or termination as
directed by a Majority in liquidation amount of the Securities voting together
as a single class; provided, however, that where a consent under the Indenture
would require a Super Majority, the Institutional Trustee may only give such
consent at the direction of the Holders of at least the proportion in
liquidation amount of the Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding.
(c) Notwithstanding the foregoing, no amendment or
modification may be made to a Declaration if such amendment or modification
would (i) cause the Trust to be classified for purposes of United States
federal income taxation as other than a grantor trust, (ii) reduce or otherwise
adversely affect the powers of the Institutional Trustee or (iii) cause
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the Trust to be deemed an investment company which is required to be registered
under the Investment Company Act.
(d) Notwithstanding any provision of the Declaration, the
right of any Holder of the Capital Securities to receive payment of
distributions and other payments upon redemption or otherwise, on or after
their respective due dates, or to institute a suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder. For the protection and
enforcement of the foregoing provision, each and every Holder of the Capital
Securities shall be entitled to such relief as can be given either at law or
equity.
8. Pro Rata
A reference in these terms of the Securities to any payment,
distribution or treatment as being Pro Rata shall mean pro rata to each Holder
of the Securities according to the aggregate liquidation amount of the
Securities held by the relevant Holder in relation to the aggregate liquidation
amount of all Securities outstanding unless, in relation to a payment, an Event
of Default has occurred and is continuing, in which case any funds available to
make such payment shall be paid first to each Holder of the Capital Securities
Pro Rata according to the aggregate liquidation amount of the Capital
Securities held by the relevant Holder relative to the aggregate liquidation
amount of all Capital Securities outstanding, and only after satisfaction of
all amounts owed to the Holders of the Capital Securities, to each Holder of
the Common Securities Pro Rata according to the aggregate liquidation amount of
the Common Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Common Securities outstanding.
9. Ranking
The Capital Securities rank pari passu with and payment thereon
shall be made Pro Rata with the Common Securities except that, where an Event
of Default has occurred and is continuing, the rights of Holders of the Common
Securities to receive payment of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights of the Holders of the
Capital Securities with the result that no payment of any Distribution on, or
Redemption Price of, any Common Security, and no other payment on account of
redemption, liquidation or other acquisition of Common Securities, shall be
made unless payment in full in cash of all accumulated and unpaid Distributions
on all outstanding Capital Securities for all distribution periods terminating
on or prior thereto, or in the case of payment of the Redemption Price the full
amount of such Redemption Price on all outstanding Capital Securities then
called for redemption, shall have been made or provided for, and all funds
immediately available to the Institutional Trustee shall first be applied to
the payment in full in cash of all Distributions on, or the Redemption Price
of, the Capital Securities then due and payable.
10. Acceptance of Securities Guarantee and Indenture
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Each Holder of the Capital Securities and the Common Securities,
by the acceptance of such Securities, agrees to the provisions of the Capital
Securities Guarantee and the Common Securities Guarantee, respectively,
including the subordination provisions therein and to the provisions of the
Indenture.
11. No Preemptive Rights
The Holders of the Securities shall have no preemptive or
similar rights to subscribe for any additional securities.
12. Miscellaneous
These terms constitute a part of the Declaration. The Sponsor
will provide a copy of the Declaration, the Capital Securities Guarantee or the
Common Securities Guarantee (as may be appropriate), and the Indenture to a
Holder without charge on written request to the Sponsor at its principal place
of business.
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EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[Include the following Restricted Securities Legend on all Capital
Securities, including Rule 144A Global Capital Securities and Restricted
Definitive Capital Securities, unless otherwise determined by the Sponsor in
accordance with applicable law ----THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE
WHICH IS THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH NATIONAL COMMERCE BANCORPORATION (THE COMPANY) OR NATIONAL
COMMERCE CAPITAL TRUST I (THE TRUST) OR ANY AFFILIATE OF THE COMPANY OR THE
TRUST WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
RESALE RESTRICTIONS TERMINATION DATE) ONLY (A) TO THE COMPANY OR THE TRUST, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT (RULE 144A), TO A PERSON IT REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH (a)
(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTS RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE
DECLARATION
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OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUST. THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS. SECURITIES OWNED BY A PURCHASER THAT IS NOT A QUALIFIED
INSTITUTIONAL BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION
DATE.]
[Include if Capital Security is in the form of a Restricted
Definitive Capital Security -- IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL
DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATE AND OTHER
INFORMATION MAY BE REQUIRED BY THE DECLARATION TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.]
[Include if Capital Security is in global form and The Depository
Trust Company is the Clearing Agency -- UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (DTC), NEW YORK, NEW YORK, TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OF TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
[Include if Capital Security is in global form -- TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED
TO BELOW.]
[THIS SECURITY MAY BE DEEMED TO BE EQUITY INTERESTS IN THE TRUST FOR
PURPOSES OF APPLYING ERISA AND SECTION 4975 OF THE CODE, THIS SECURITY MAY NOT
BE PURCHASED OR HELD BY ANY EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL
RETIREMENT ACCOUNT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (ERISA), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE CODE) (EACH, A PLAN), ANY ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY PLANS INVESTMENT IN THE
ENTITY (A PLAN ASSET ENTITY) OR ANY PERSON INVESTING PLAN ASSETS OF ANY PLAN,
UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE
UNDER PTCE 96-
- 81 -
98
23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION. IF A
PURCHASER OR HOLDER OF THIS SECURITY THAT IS A PLAN OR A PLAN ASSET ENTITY
ELECTS TO RELY ON AN EXEMPTION OTHER THAN PTCE 96-23, 95-60, 91-38, 90-1 OR
84-14, THE COMPANY AND THE TRUST MAY REQUIRE A SATISFACTORY OPINION OF COUNSEL
OR OTHER EVIDENCE WITH RESPECT TO THE AVAILABILITY OF SUCH EXEMPTION FOR SUCH
PURCHASE AND HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST
THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF
THAT EITHER (A) IT IS NOT A PLAN OR A PLAN ASSETS ENTITY AND IS NOT PURCHASING
SUCH SECURITIES ON BEHALF OF OR WITH PLAN ASSETS OF ANY PLAN OR (B)(I) IT IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23, 95-60, 91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR
HOLDING AND (II) THE COMPANY AND THE ADMINISTRATORS ARE NOT FIDUCIARIES, WITHIN
THE MEANING OF SECTION 3(21) OF ERISA AND THE REGULATIONS THEREUNDER, WITH
RESPECT TO ITS INTEREST IN THIS SECURITY.]
Certificate Number Number of Capital Securities
CUSIP NO ___________
Certificate Evidencing Capital Securities
of
NATIONAL COMMERCE CAPITAL TRUST I
Floating Rate Capital Pass-through Securities(SM) (TRUPS(SM))
(liquidation amount $1,000 per Capital Security)
NATIONAL COMMERCE CAPITAL TRUST I, a statutory business trust
created under the laws of the State of Delaware (the Trust), hereby certifies
that ______________ (the Holder) is the registered owner of securities of the
Trust representing undivided beneficial interests in the assets of the Trust,
designated the Floating Rate Capital Trust Pass-through Securities(SM)
(liquidation amount $1,000 per Capital Security) (the Capital Securities).
Subject to the Declaration (as defined below), the Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this Certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities
represented hereby are issued pursuant to, and shall in all respects be subject
to, the provisions of the Amended and Restated Declaration of Trust of the
Trust dated as of March 27, 1997, among Xxx X. Xxxxxxx, Xxxxx X. Xxxxxx and
Xxxxxx X.
- 82 -
99
Xxxxx, as Administrators, The Bank of New York (Delaware), as Delaware Trustee,
The Bank of New York, as Institutional Trustee, National Commerce
Bancorporation, as Sponsor, and the holders from time to time of undivided
beneficial interests in the assets of the Trust, including the designation of
the terms of the Capital Securities as set forth in Annex I to the Declaration,
as the same may be amended from time to time (the Declaration). Capitalized
terms used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Capital Securities
Guarantee to the extent provided therein. The Sponsor will provide a copy of
the Declaration, the Capital Securities Guarantee or the Common Securities
Guarantee (as may be appropriate), and the Indenture to the Holder without
charge upon written request to the Trust at its principal place of business.
Upon receipt of this Security, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance of this Security, the Holder agrees to treat, for
United States federal income tax purposes, the Debentures as indebtedness and
the Capital Securities as evidence of beneficial ownership in the Debentures.
This Capital Security is governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to principles of
conflict of laws.
IN WITNESS WHEREOF, the Trust has duly executed this certificate.
NATIONAL COMMERCE CAPITAL TRUST I
By:
--------------------------------
Name:
Title: Administrator
CERTIFICATE OF AUTHENTICATION
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100
This is one of the Capital Securities referred to in the
within-mentioned Declaration.
Dated:
THE BANK OF NEW YORK, as the
Institutional Trustee
By:
Authorized Signatory
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be payable at a
variable annual rate of LIBOR plus 0.98% (the Coupon Rate) of the stated
liquidation amount of $1,000 per Capital Security, such rate being the rate of
interest payable on the Debentures to be held by the Institutional Trustee.
Except as set forth below in respect of an Extension Period, Distributions in
arrears for more than a quarterly period will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term Distributions as used herein includes cash distributions and any such
compounded interest payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of the actual number of days elapsed in a year
of twelve 30-day months.
Except as otherwise described below, Distributions on the Capital
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears on the first day of January, April,
July and October of each year, commencing on July 1, 1997. The Debenture
Issuer has the right under the Indenture to defer payments of interest by
extending the interest payment period (each an Extension Period) at any time
and from time to time on the Debentures, subject to certain conditions,
although such interest would continue to accrue on the Debentures at a variable
annual rate of LIBOR plus 0.98%,
- 84 -
101
compounded quarterly to the extent permitted by law during any Extension
Period. If such right is exercised, quarterly Distributions on the Capital
Securities will also be deferred (though such Distributions would continue to
accrue at the variable annual rate of LIBOR plus 0.98%, compounded quarterly to
the extent permitted by law) during any Extension Period. Such right to extend
any extension period is limited to Extension Periods, each not exceeding 20
consecutive quarterly periods, provided, however, that no Extension Period
shall be initiated while accrued interest from a prior, completed Extension
Period is unpaid or while the Debenture Issuer is in default in the payment of
interest that has become due and payable on the Debentures, and no Extension
Period may extend beyond the maturity of the Debentures. Prior to the
termination of any such Extension Period in respect of the Debentures, the
Debenture Issuer may further extend the interest payment period; provided that
each such Extension Period in respect of the Debentures, together with all such
previous and further extensions thereof, may not exceed 20 consecutive
quarterly periods or extend beyond the maturity of the Debentures. If
Distributions are deferred, the Distributions due shall be paid on the date
that the related Extension Period terminates, or, if such date is not a
Distribution Payment Date, on the immediately following Distribution Payment
Date, to Holders of the Capital Securities as they appear on the books and
records of the Trust on the record date immediately preceding such date.
Distributions on the Capital Securities must be paid on the dates payable
(after giving effect to any Extension Period) to the extent that the Trust has
funds available for the payment of such Distributions in the Property Account
of the Trust. The Trusts funds available for distribution to the Holders of
the Securities will be limited to payments received from the Debenture Issuer.
The payment of Distributions out of moneys held by the Trust is guaranteed by
the Guarantor pursuant to the Capital Securities Guarantee.
The Capital Securities shall be redeemable as provided in the
Declaration.
- 85 -
102
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security Certificate to:
(Insert assignees social security or tax identification number)
(Insert address and zip code of assignee) and irrevocably appoints agent to
transfer this Capital Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Capital Security
Certificate)
Signature Guarantee:(3)
----------------------------------
(3) Signature must be guaranteed by an eligible guarantor institution
that is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Security registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
(STAMP) or such other signature guarantee program as may be determined by the
Security registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
- 86 -
103
EXHIBIT A-2
FORM OF EXCHANGE CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[Include if Capital Security is in global form and The Depository
Trust Company is the Clearing Agency -- UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (DTC), NEW YORK, NEW YORK, TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OF TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
[Include if Capital Security is in global form -- TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED
TO BELOW.]
Certificate Number Number of Capital Securities
CUSIP NO ___________
Certificate Evidencing Capital Securities
of
NATIONAL COMMERCE CAPITAL TRUST I
Floating Rate Capital Pass-through Securities(SM) (TRUPS(SM))
(liquidation amount $1,000 per Capital Security)
NATIONAL COMMERCE CAPITAL TRUST I, a statutory business trust
created under the laws of the State of Delaware (the Trust), hereby certifies
that ______________ (the Holder) is the registered owner of securities of the
Trust representing undivided beneficial interests in the assets of the Trust,
designated the Floating Rate Capital Trust Pass-
- 87 -
104
through Securities(SM) (liquidation amount $1,000 per Capital Security) (the
Capital Securities). Subject to the Declaration (as defined below), the
Capital Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this Certificate
duly endorsed and in proper form for transfer. The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities represented hereby are issued pursuant to, and shall in all
respects be subject to, the provisions of the Amended and Restated Declaration
of Trust of the Trust dated as of March 27, 1997, among Xxx X. Xxxxxxx, Xxxxx
X. Xxxxxx and Xxxxxx X. Xxxxx, as Administrators, The Bank of New York
(Delaware), as Delaware Trustee, The Bank of New York, as Institutional
Trustee, National Commerce Bancorporation, as Sponsor, and the holders from
time to time of undivided beneficial interests in the assets of the Trust,
including the designation of the terms of the Capital Securities as set forth
in Annex I to the Declaration, as the same may be amended from time to time
(the Declaration). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits
of the Capital Securities Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Capital Securities
Guarantee or the Common Securities Guarantee (as may be appropriate) and the
Indenture to the Holder without charge upon written request to the Trust at its
principal place of business.
Upon receipt of this Security, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance of this Security, the Holder agrees to treat, for
United States federal income tax purposes, the Debentures as indebtedness and
the Capital Securities as evidence of beneficial ownership in the Debentures.
This Capital Security is governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to principles of
conflict of laws.
IN WITNESS WHEREOF, the Trust has duly executed this certificate.
- 88 -
105
NATIONAL COMMERCE CAPITAL TRUST I
By:
--------------------------------
Name:
Title: Administrator
CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the
within-mentioned Declaration.
Dated:
-----------------------
THE BANK OF NEW YORK, as the
Institutional Trustee
By:
Authorized Signatory
[FORM OF REVERSE OF SECURITY]
- 89 -
106
Distributions payable on each Capital Security will be payable at a
variable annual rate of LIBOR plus 0.98% (the Coupon Rate) of the stated
liquidation amount of $1,000 per Capital Security, such rate being the rate of
interest payable on the Debentures to be held by the Institutional Trustee.
Except as set forth below in respect of an Extension Period, Distributions in
arrears for more than a quarterly period will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term Distributions as used herein includes cash distributions and any such
compounded interest payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed on the basis of the
actual number of days elapsed in a year of twelve 30-day months.
Except as otherwise described below, Distributions on the Capital
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears on the first day of January, April,
July and October of each year, commencing on July 1, 1997. Distributions will
be made by the Institutional Trustee, except as otherwise described. The
Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period (each an Extension Period) at
any time and from time to time on the Debentures, subject to certain
conditions, although such interest will continue to accrue on the Debentures at
a variable annual rate of LIBOR plus 0.98%, compounded quarterly (to the extent
permitted by law) during any Extension Period. If such right is exercised,
quarterly Distributions on the Capital Securities will also be deferred (though
such Distributions would continue to accrue at the variable annual rate of
LIBOR plus 0.98%, compounded quarterly (to the extent permitted by law)) during
any Extension Period. Such right to extend any interest payment period is
limited to Extension Periods, each not exceeding 20 consecutive quarterly
periods, provided, however, that no Extension Period may be initiated while
accrued interest from a prior, completed Extension Period is unpaid or while
the Debenture Issuer is in default in the payment of interest that has become
due and payable on the Debentures, and no Extension Period may extend beyond
the maturity of the Debentures. Prior to the termination of any such Extension
Period in respect of the Debentures, the Debenture Issuer may further extend
the interest payment period; provided that each such Extension Period in
respect of the Debentures, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarterly periods or extend
beyond the maturity of the Debentures. If Distributions are deferred, the
Distributions due shall be paid on the date that the related Extension Period
terminates, or, if such date is not a Distribution Payment Date, on the
immediately following Distribution Payment Date, to Holders of the Capital
Securities as they appear on the books and records of the Trust on the record
date immediately preceding such date. Distributions on the Capital Securities
must be paid on the dates payable (after giving effect to any Extension Period)
to the extent that the Trust has funds available for the payment of such
Distributions in the Property Account of the Trust. The Trusts funds available
for distribution to the Holders of the Securities will be limited to payments
received from the Debenture Issuer. The payment of Distributions out of
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107
moneys held by the Trust is guaranteed by the Sponsor pursuant to the Capital
Securities Guarantee.
The Capital Securities shall be redeemable as provided in the
Declaration.
- 91 -
108
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security Certificate to:
(Insert assignees social security or tax identification number)
(Insert address and zip code of assignee) and irrevocably appoints agent to
transfer this Capital Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Capital Security
Certificate)
Signature Guarantee:(4)
----------------------------------
(4) Signature must be guaranteed by an eligible guarantor institution
that is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Security registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
(STAMP) or such other signature guarantee program as may be determined by the
Security registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
- 92 -
109
EXHIBIT A-3
FORM OF COMMON SECURITY CERTIFICATE
[THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN EFFECTIVE
REGISTRATION STATEMENT.]
[THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED.]
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
NATIONAL COMMERCE CAPITAL TRUST I
NATIONAL COMMERCE CAPITAL TRUST I, a statutory business trust
created under the laws of the State of Delaware (the Trust), hereby certifies
that National Commerce Bancorporation (the Holder) is the registered owner of
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust (the Common Securities). The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities represented hereby are issued pursuant to, and shall in all
respects be subject to, the provisions of the Amended and Restated Declaration
of Trust of the Trust dated as of March 27, 1997, among Xxx X. Xxxxxxx, Xxxxx
X. Xxxxxx and Xxxxxx X. Xxxxx, as Administrators, The Bank of New York
(Delaware), as Delaware Trustee, The Bank of New York, as Institutional
Trustee, National Commerce Bancorporation as Sponsor and the holders from time
to time of undivided beneficial interest in the assets of the Trust including
the designation of the terms of the Common Securities as set forth in Annex I
to the Declaration, as the same may be amended from time to time (the
Declaration). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits
of the Common Securities Guarantee to the extent provided therein. The Sponsor
will provide a copy of the Declaration, the Common Securities Guarantee and the
Indenture to the Holder without charge upon written request to the Sponsor at
its principal place of business.
As set forth in the Declaration, where an Event of Default has
occurred and continuing, the rights of Holders of Common securities to payment
in respect of Distributions and payments upon Liquidation, redemption or
otherwise are subordinated to the rights of payment of Holders of the Capital
Securities.
- 93 -
110
Upon receipt of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance of this Certificate, the Holder agrees to treat, for
United States federal income tax purposes, the Debentures as indebtedness and
the Common Securities as evidence of undivided beneficial ownership in the
Debentures.
This Common Security is governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to principles of
conflict of laws.
IN WITNESS WHEREOF, the Trust has executed this certificate
this ___ day of March, 1997.
NATIONAL COMMERCE CAPITAL TRUST I
By:
------------------------------
Name:
Title: Administrator
- 94 -
111
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be identical in
amount to the Distributions payable on each Capital Security, which is at a
variable annual rate of LIBOR plus 0.98% (the Coupon Rate) of the stated
liquidation amount of $1,000 per Capital Security, such rate being the rate of
interest payable on the Debentures to be held by the Institutional Trustee.
Except as set forth below in respect of an Extension Period, Distributions in
arrears for more than one quarterly period will bear interest thereon
compounded quarterly at the Coupon Rate (to the extent permitted by applicable
law). The term Distributions as used herein includes cash distributions and any
such compounded distribution payable on the Debentures unless otherwise stated.
A Distribution is payable only to the extent that payments are made in respect
of the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the actual number of days elapsed in a year of twelve
30-day months.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears on the first day of January, April,
July and October of each year, commencing on July 1, 1997. The Debenture
Issuer has the right under the Indenture to defer payments of interest by
extending interest payment period (each an Extension Period) at any time and
from time to time on the Debentures, subject to certain conditions, although
such interest would continue to accrue on the Debentures at a variable annual
rate of LIBOR plus 0.98%, compounded quarterly to the extent permitted by law
during any Extension Period. If such right is exercised, quarterly
distributions on the Common Securities will also be deferred (though such
Distributions would continue to accrue at the variable annual rate of LIBOR
plus 0.98%, compounded quarterly to the extent permitted by law) during any
Extension Period. Such right to extend any extension period is limited to
Extension Periods, each not exceeding 20 consecutive quarterly periods,
provided, however, that no Extension Period shall be initiated while accrued
interest from a prior, completed Extension Period is unpaid or while the
Debenture Issuer is in default in the payment of interest that has become due
and payable on the Debentures; and no Extension Period shall extend beyond the
date of maturity of the Debentures. Prior to the termination of any such
Extension Period in respect of the Debentures, the Debenture Issuer may further
extend the interest payment period; provided that each such Extension Period in
respect of the Debentures, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarterly periods or extend
beyond the maturity of the Debentures. Upon the termination of any Extension
Period of the Debentures and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
If Distributions are deferred, the Distributions due shall be paid on the date
that the related Extension Period terminates, or, if such date is not a
Distribution Payment Date, on the immediately following Distribution Payment
Date, to Holders of the Common Securities as they appear on the books and
records
- 95 -
112
of the Trust on the record date immediately preceding such date. Distributions
on the Common Securities must be paid on the dates payable (after giving effect
to any Extension Period) to the extent that the Trust has funds available for
the payment of such Distributions in the Property Account of the Trust. The
Trusts funds available for distribution to the Holders of the Common Securities
will be limited to payments received from the Debenture Issuer. The payment of
Distributions out of moneys held by the Trust is guaranteed by the Guarantor
pursuant to the Common Securities Guarantee.
The Common Securities shall be redeemable as provided in the
Declaration.
- 96 -
113
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Common Security Certificate to:
(Insert assignees social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
______________________________________________________ agent to transfer this
Common Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
Signature:
(Sign exactly as your name appears on the other side of this common Security
Certificate)
Signature Guarantee(5)
----------------------------------
(5) Signature must be guaranteed by an eligible guarantor institution
that is a bank, stockbroker, savings and loan association or credit union,
meeting the requirements of the Security registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
(STAMP) or such other signature guarantee program as may be determined by the
Security registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
- 97 -
114
EXHIBIT B
FORM OF TRANSFEREE CERTIFICATE
TO BE EXECUTED BY IAIs
__________, 199__
National Commerce Bancorporation
National Commerce Capital Trust I
c/o National Commerce Bancorporation
Xxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
M
Re: Purchase of $1,000 stated liquidation amount of Floating Rate
Capital Trust
M
Pass-through Securities (SM) (TruPS) (SM) (the Capital Securities) of
National
M
Commerce Capital Trust I (the Trust)
M
Ladies and Gentlemen:
In connection with our purchase of the Capital Securities we confirm that:
1. We understand that the Floating Rate Capital Trust Pass-through
Securities(SM) (the Capital Securities) (including the guarantees (the
Guarantees) of National Commerce Bancorporation (National Commerce) executed in
connection therewith) and the Floating Rate Junior Subordinated Deferrable
Interest Debentures due 2027 (the Subordinated Debt Securities) of National
Commerce, the Capital Securities, the Guarantees, and Subordinated
- 98 -
115
Debt Securities together being referred to herein as Offered Securities) have
not been registered under the Securities Act of 1933, as amended (the
Securities Act), and may not be offered or sold except as permitted in the
following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing the Offered Securities that, if, prior to
the date which is three years after the later of the date of original issue of
the Offered Securities and the last date on which National Commerce, the Trust
or any affiliate of National Commerce or the Trust was the owner of such
Offered Securities (the Resale Restriction Termination Date), we decide to
offer, sell or otherwise transfer any such Offered Securities, such offer, sale
or transfer will be made only (a) to National Commerce or the Trust, (b)
pursuant to an effective registration statement under the Securities Act, (c)
so long as the Offered Securities are eligible for resale pursuant to Rule 144A
under the Securities Act, to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a QIB) that purchases for its own account
or for the account of a QIB and to whom notice is given that the transfer is
being made in reliance on Rule 144A, (d) to an institutional accredited
investor with the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501
under the Securities Act that is acquiring Offered Securities for its own
account or for the account of such an institutional accredited investor for
investment purposes and not with a view to, or for offer or sale in connection
with, any distribution thereof in violation of the Securities Act, or (e)
pursuant to another available exemption from the registration requirements of
the Securities Act, subject in each of the foregoing cases to any requirements
of law that the disposition of our property or compliance with any applicable
state securities laws. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. If any resale or other
transfer of the Offered Securities is proposed to be made pursuant to clause
(d) above prior to the Resale Restriction Termination Date, the transferor
shall deliver a letter from the transferee substantially in the form of this
letter to The Bank of New York as Transfer Agent, which shall provide as
applicable, among other things, that the transferee is an institutional
accredited investor within the meaning of subparagraph (a)1 (1), (2), (3) or
(7) of Rule 501 under the Securities Act that is acquiring such Securities for
investment purposes and not for distribution in violation of the Securities
Act. We acknowledge on our behalf and on behalf of any investor account for
which we are purchasing Securities that the Trust and National Commerce reserve
the right prior to any offer, sale or other transfer pursuant to clauses (d) or
(e) prior to the Resale Restriction Termination Date of the Securities to
require the delivery of any opinion of counsel, certifications and/or other
information satisfactory to the Trust and National Commerce. We understand
that the certificates for any Offered Security that we receive will bear a
legend substantially to the effect of the foregoing.
2. We are an institutional accredited investor with the meaning of
subparagraph (a) (1), (2), (3) or (7) of Rule 501 under the Securities Act
purchasing for our own account or for the account of such an institutional
accredited investor, and we are acquiring the Offered Securities for the
investment purposes and not with view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act and we have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks
- 99 -
116
of our investment in the Offered Securities, and we and any account for which
we are acting are each able to bear the economic risks of our or its
investment.
3. We are acquiring the Offered Securities purchased by us for our
own account (or for one or more accounts as to each of which we exercise sole
investment discretion and have authority to make, and do make, the statements
contained in this letter) and not with a view to any distribution of the
Offered Securities, subject, nevertheless, to the understanding that the
disposition of our property will at all times be and remain within our control.
4. In the event that we purchase any Capital Securities or any
Subordinated Debt Securities, we will acquire such Capital Securities having an
aggregate stated liquidation amount of not less than $100,000 or such
Subordinated Debt Securities having an aggregate principal amount not less than
$100,000, for our own account and for each separate account for which we are
acting.
5. We acknowledge that we either (A) are not a fiduciary of a
pension, profit-sharing or other employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended (ERISA) (a Plan), or an
entity whose assets include plan assets by reason of any Plans investment in
the entity and are not purchasing the Offered Securities on behalf of or with
plan assets by reason of any Plans investment in the entity and is not
purchasing the Offered Securities on behalf of or with plan assets of any Plan
or (B) are eligible for the exemptive relief available under one ore more of
the following prohibited transaction class exemptions (PTCEs) issued by the
U.S. Department of Labor: PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
6. We acknowledge that National Commerce and the Trust and others
will rely upon the truth and accuracy of the foregoing acknowledges,
representations, warranties and agreements and agrees that if any of the
acknowledgments, representations, warranties and agreements deemed to have been
made by our purchase of the Offered Securities are no longer accurate, we shall
promptly notify the Initial Purchasers. If we are acquiring any Offered
Securities as a fiduciary or agent for one or more investor accounts, we
represent that we have sole discretion with respect to each such investor
account and that we have full power to make the foregoing acknowledgments,
representations and agreement on behalf of each such investor account.
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Very truly yours,
(Name of Purchaser)
By:
Date:
Upon transfer of the Offered Securities would be registered in the name of the
new beneficial owner as follows.
Name:
Address:
Taxpayer ID Number:
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EXHIBIT C
FORM OF TRANSFEREE CERTIFICATE
TO BE EXECUTED FOR QIBs
__________, 199__
National Commerce Bancorporation
National Commerce Capital Trust I
c/o National Commerce Bancorporation
Xxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Purchase of $1,000 stated liquidation amount of Floating Rate Capital Trust
Pass-through Securities (SM) (TRUPS) (SM) (the Capital Securities) of
National
Commerce Capital Trust I (the Trust)
Reference is hereby made to the Amended and Restated Declaration dated as of
March 27, 1997 (the Declaration) among Xxx X. Xxxxxxx, Xxxxx X. Xxxxxx and
Xxxxxx X. Xxxxx, as Administrators, The Bank of New York (Delaware), as
Delaware Trustee, The Bank of New York, as Institutional Trustee, National
Commerce Bancorporation, as Sponsor, and the holders from time to time of
undivided beneficial interest in the assets of the Trust. Capitalized terms
used but not defined herein shall have the meanings given them in the
Declaration.
This letter relates to $50,000,000 aggregate liquidation amount of Capital
Securities which are held in the name of [name of transferor] (the Transferor)
to effect the transfer of such Capital Securities in exchange for an equivalent
beneficial interest in the Rule 144A Global Capital Security.
In connection with such request, and in respect to such Capital Securities, the
transferor does hereby certify that such Capital Securities are being
transferred in accordance with (i) the
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transfer restrictions set forth in the Capital Securities and (ii) Rule 144A
under the United States Securities Act of 1933, as amended (Rule 144A), to a
transferee that the Transferor reasonably believes is purchasing the Capital
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion and the transferee and any such
account is a qualified institutional buyer within the meaning of Rule 144A, in
a transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
You are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
(Name of Transferor)
By:
Name:
Title:
Date:
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EXHIBIT D
SPECIMEN OF INITIAL DEBENTURE
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121
EXHIBIT E
PURCHASE AGREEMENT
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122
EXHIBIT F
REGISTRATION RIGHTS AGREEMENT
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