SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) -- May 12, 2003
FIRST TENNESSEE NATIONAL CORPORATION
(Exact Name of Registrant as Specified in Charter)
TENNESSEE 0-4491 62-0803242
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
165 MADISON AVENUE
MEMPHIS, TENNESSEE 38103
(Address of Principal Executive Office) (Zip Code)
Registrant's telephone number, including area code -- (901) 523-4444
ITEM 5. OTHER EVENTS
Accompanying this Current Report on Form 8-K in connection with the offer
and sale by the Company of $100,000,000 of its 4.50% Subordinated Notes due May
15, 2013 are (i) as exhibit 2.1, the Underwriting Agreement, dated May 7, 2003,
entered into by the Company and FTN Financial Securities Corp.; (ii) as exhibit
2.2, the Terms Agreement, dated May 7, 2003, entered into by the Company and FTN
Financial Securities Corp.; (iii) as exhibit 4.1, the Supplemental Indenture,
dated May 12, 2003, entered into by the Company and Bank One Trust Company,
N.A., as additional trustee, which supplements the Indenture, dated as of
November 1, 1995, entered into by the Company and The Bank of New York, as
trustee thereunder; (iv) as exhibit 4.2, the form of security.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
c) Exhibits
The following exhibits are filed herewith:
Exhibit Number Description
2.1 Underwriting Agreement dated May 7, 2003, entered into by
the Company and FTN Financial Securities Corp.
2.2 Terms Agreement, dated May 7, 2003, entered into by the
Company and FTN Financial Securities Corp.
4.1 Supplemental Indenture, dated May 12, 2003, entered into by
the Company and Bank One Trust Company, N.A., which
supplements the Indenture for Subordinated Debt Securities,
dated November 1, 1995, between the Company and The Bank of
New York, as trustee thereunder.
4.2 Form of Security
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FIRST TENNESSEE NATIONAL CORPORATION
Date: May 12, 2003 /s/James F. Keen
By:-------------------------------
Name:James F. Keen
Title:EVO, CFO & Corporate Controller
EXHIBIT INDEX
Exhibit Number Description
2.1 Underwriting Agreement dated May 7, 2003, entered into by
the Company and FTN Financial Securities Corp.
2.2 Terms Agreement, dated May 7, 2003, entered into by the
Company and FTN Financial Securities Corp.
4.1 Supplemental Indenture, dated May 12, 2003, entered into by
the Company and Bank One Trust Company, N.A., which
supplements the Indenture for Subordinated Debt Securities,
dated November 1, 1995, between the Company and The Bank of
New York, as trustee thereunder.
4.2 Form of Security
Exhibit 2.1
EXECUTION COPY
FIRST TENNESSEE NATIONAL CORPORATION
(a Tennessee corporation)
Debt Securities
Dated May 7, 2003
Table of Contents
Page
FIRST TENNESSEE NATIONAL CORPORATION (a Tennessee
corporation) Debt Securities.................................................1
UNDERWRITING AGREEMENT.........................................................1
SECTION 1. Representations and Warranties.....................................3
(a) Representations and Warranties by the Company......................3
(1) Compliance with Registration Requirements........................3
(2) Incorporated Documents...........................................4
(3) Independent Accountants..........................................4
(4) Financial Statements.............................................4
(5) No Material Adverse Change in Business...........................5
(6) Good Standing of the Company.....................................5
(7) Good Standing of Subsidiaries....................................5
(8) Capitalization...................................................6
(9) Authorization of this Underwriting Agreement
and Terms Agreement.............................................6
(10) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities....................................6
(11) Authorization of the Indentures..................................6
(12) Descriptions of the Underwritten Securities......................7
(13) Absence of Defaults and Conflicts................................7
(14) Absence of Proceedings...........................................8
(15) Absence of Further Requirements..................................8
(16) Compliance with Banking Laws.....................................8
(17) Broker/Dealer Regulation.........................................8
(18) Internal Controls................................................9
(b) Officers' Certificates.............................................9
SECTION 2. Sale and Delivery to Underwriters; Closing.........................9
(a) Underwritten Securities............................................9
(b) Payment...........................................................10
(c) Denominations; Registration.......................................10
SECTION 3. Covenants of the Company..........................................10
(a) Compliance with Securities Regulations and Commission Requests....10
(b) Filing of Amendments..............................................11
(c) Delivery of Registration Statements...............................11
(d) Delivery of Prospectuses..........................................11
(e) Continued Compliance with Securities Laws.........................11
(f) Blue Sky Qualifications...........................................12
(g) Earnings Statement................................................12
(h) Use of Proceeds...................................................12
(i) Listing...........................................................12
(j) Restriction on Sale of Securities.................................12
(k) Reporting Requirements............................................13
SECTION 4. Payment of Expenses...............................................13
(a) Expenses..........................................................13
(b) Termination of Agreement..........................................13
SECTION 5. Conditions of Underwriters' Obligations...........................13
(a) Effectiveness of Registration Statement...........................14
(b) Opinion of Counsel for Company....................................14
(c) Opinion of Counsel for Underwriters...............................14
(d) Officers' Certificate.............................................14
(e) Accountant's Comfort Letter.......................................15
(f) Bring-down Comfort Letter.........................................15
(g) Ratings...........................................................15
(h) Approval of Listing...............................................15
(i) No Objection......................................................15
(j) Additional Documents..............................................15
(k) Termination of Terms Agreement....................................16
SECTION 6. Indemnification...................................................16
(a) Indemnification of Underwriters...................................16
(b) Indemnification of Company, Directors and Officers................17
(c) Actions against Parties; Notification.............................17
(d) Settlement without Consent if Failure to Reimburse................18
SECTION 7. Contribution......................................................18
SECTION 8. Representations, Warranties and Agreements to Survive Delivery....19
SECTION 9. Termination.......................................................19
(a) Underwriting Agreement............................................19
(b) Terms Agreement...................................................19
(c) Liabilities.......................................................20
SECTION 10. Default by One or More of the Underwriters........................20
SECTION 11. Notices...........................................................21
SECTION 12. Parties...........................................................21
SECTION 13. GOVERNING LAW AND TIME............................................21
SECTION 14. Effect of Headings................................................21
FORM OF OPINION OF COMPANY'S COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(b)..1
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)...................1
FIRST TENNESSEE NATIONAL CORPORATION
(a Tennessee corporation)
Debt Securities
UNDERWRITING AGREEMENT
May 7, 2003
FTN Financial Securities Corp.
845 Crossover Lane
Suite 150
Memphis, Tennessee 38117
Ladies and Gentlemen:
First Tennessee National Corporation, a Tennessee corporation (the
"Company"), proposes to issue and sell up to $225,000,000 aggregate initial
public offering price of its senior or subordinated debt securities (the "Debt
Securities") from time to time, in or pursuant to one or more offerings on terms
to be determined at the time of sale.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture (the "Senior
Indenture") to be entered into between the Company and The Bank of New York, as
trustee (the "Senior Trustee"), or as subordinated indebtedness (the
"Subordinated Debt Securities") under an indenture, dated as of November 1,
1995, between the Company and The Bank of New York, as trustee, as supplemented
by a Supplemental Indenture, dated as of May 12, 2003, between the Company and
Bank One Trust Company, National Association as trustee with respect to the
Subordinated Debt Securities specified therein (as so supplemented, the
"Subordinated Indenture") and collectively with the Senior Indenture, the
"Indentures" and each, an "Indenture"). The Bank of New York and Bank One Trust
Company, National Association are hereinafter referred to as the "Subordinated
Trustees", and collectively with the Senior Trustee the "Trustees" and each a
"Trustee". Each series of Debt Securities may vary, as applicable, as to title,
aggregate principal amount, rank, interest rate or formula and timing of
payments thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements, conversion provisions (and the terms of the related
underlying securities) and any other variable terms established by or pursuant
to the applicable Indenture.
As used herein, "Securities" shall mean the Senior Debt Securities or
Subordinated Debt Securities, or any combination thereof, initially issuable by
the Company.
Whenever the Company determines to make an offering of Securities through
FTN Financial Securities Corp. ("FTN"), or through an underwriting syndicate
managed by FTN, the Company will enter into an agreement (each, a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, FTN and such other underwriters, if any, selected by FTN
(the "Underwriters", which term shall include FTN, whether acting as sole
Underwriter or as a member of an underwriting syndicate, as well as any
Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Securities shall specify the aggregate principal
amount of Securities to be issued (the "Underwritten Securities"), the name of
each Underwriter participating in such offering (subject to substitution as
provided in Section 10 hereof) and the name of any Underwriter other than FTN
acting as co-manager in connection with such offering, the aggregate principal
amount of Underwritten Securities that each such Underwriter severally agrees to
purchase, whether such offering is on a fixed or variable price basis and, if on
a fixed price basis, the initial offering price, the price at which the
Underwritten Securities are to be purchased by the Underwriters, the form, time,
date and place of delivery and payment of the Underwritten Securities and any
other material variable terms of the Underwritten Securities. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between the Company and FTN, acting for itself and, if applicable, as
representative of any other Underwriters. Each offering of Underwritten
Securities through FTN as sole Underwriter or through an underwriting syndicate
managed by FTN will be governed by this Underwriting Agreement, as supplemented
by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-52561) and
pre-effective amendment no. one thereto for the registration of the Securities
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statement was declared effective by the Commission on March
23, 1994 and each Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement and each such post-effective amendment has been
declared effective by the Commission. Such registration statement (as so
amended, if applicable) is referred to herein as the "Registration Statement";
and the final prospectus and the final prospectus supplement relating to the
offering of the Underwritten Securities, in the forms first furnished to the
Underwriters by the Company for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then all references to
"Registration Statement" shall also be deemed to include the Rule 462 (b)
Registration Statement. A "preliminary prospectus" shall be deemed to refer to
any prospectus and prospectus supplement that omitted information to be included
upon pricing in a form of prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations and was used after such effectiveness and
prior to the initial delivery of the Prospectus to the Underwriters by the
Company. For purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus or preliminary prospectus or to any amendment
or supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
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All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall be
deemed to include the filing of any document under the 1934 Act which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to FTN, as of the date hereof, and to each Underwriter named in the
applicable Terms Agreement, as of the date thereof and as of the Closing Time
(as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement (or such Rule 462(b) Registration Statement)
has been issued under the 1933 Act and no proceedings for that purpose have
been instituted or, to the knowledge of the Company, are pending or
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. In addition,
each Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement (including any Rule
462(b) Registration Statement) and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K with the Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the Registration Statement
(including any Rule 462(b) Registration Statement) and any amendments
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at the Closing Time neither
the Prospectus nor any amendments and supplements thereto included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the representations and warranties in this
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subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through FTN expressly for use in the Registration Statement or
the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Underwritten Securities will, at the
time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus,
at the time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder (the "1934
Act Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus and at the Closing Time, did not
and will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto for the period
ended December 31, 2001 and at December 31, 2000 and 2001 included in the
Registration Statement and the Prospectus were, at the time that the
Company's Annual Report on Form 10-K for the year ended December 31, 2001
was filed with the Commission, independent public accountants with respect
to the Company as required by the 1933 Act and the 1933 Act Regulations.
The accountants who certified the financial statements and any supporting
schedules thereto for the period ended December 31, 2002 and at December
31, 2002 included in the Registration Statement and the Prospectus are
independent public accountants with respect to the Company as required by
the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Company
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The selected financial data and the
summary financial information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included in the Registration
Statement and the Prospectus.
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(5) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those arising in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise and (C) except for regular dividends on the
Company's common stock or preferred stock, in amounts per share that are
consistent with past practice or the applicable charter document or
supplement thereto, respectively, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(6) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Tennessee and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement and the applicable Terms
Agreement. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify or be in good standing would not result in a Material Adverse
Effect.
(7) Good Standing of Subsidiaries. The Company has no subsidiaries
that, individually or in the aggregate, when considered as a single
subsidiary, it would consider to be a "significant subsidiary" of the
Company (based upon the criteria contained in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act), other than First Tennessee Bank National
Association (the "Bank"), First Horizon Home Loan Corporation (the
"Subsidiary") and FT Mortgage Holding Corporation. The Subsidiary has been
duly organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation. The Bank has been
duly organized and is validly existing as a national banking association
under the laws of the United States. The Subsidiary has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not result in
a Material Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding capital
stock of each of the Subsidiary and the Bank has been duly authorized and
is validly issued, fully paid and non-assessable (except, in the case of
the Bank, as provided in 12 U.S.C. ss. 55, as amended) and is owned by the
Company, directly or through subsidiaries, free and clear of any security
5
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the
outstanding shares of capital stock of each of the Subsidiary and the Bank
was issued in violation of preemptive or other similar rights of any
securityholder of the Subsidiary or the Bank, as the case may be. The Bank
is an insured bank under the applicable provisions of the Federal Deposit
Insurance Act, as amended, and no proceeding for the termination or
revocation of such insurance is pending or, to the knowledge of the
Company, threatened against any such subsidiary. The Bank has no
subsidiaries that are depository institutions with deposits insured under
the provisions of the Federal Deposit Insurance Act, as amended.
(8) Capitalization. The authorized, issued and outstanding shares of
capital stock of the Company is as set forth in the column entitled
"Actual" under the "Capitalization" section in the Prospectus (except for
subsequent issuances thereof, if any, pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the
Prospectus). Such shares of capital stock have been duly authorized and
validly issued by the Company and are fully paid and non-assessable, and
none of such shares of capital stock was issued in violation of preemptive
or other similar rights of any securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms Agreement.
This Underwriting Agreement has been, and the applicable Terms Agreement as
of the date thereof will have been, duly authorized, executed and delivered
by the Company.
(10) Authorization of Senior Debt Securities and/or Subordinated Debt
Securities. If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underwritten Securities have been, or as
of the date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in such
Terms Agreement, will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding
in equity or at law), and except further as enforcement thereof may be
limited by requirements that a claim with respect to any Debt Securities
payable in a foreign or composite currency (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S. dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States. Such Underwritten Securities
will be in the form contemplated by, and each registered holder thereof is
entitled to the benefits of, the applicable Indenture.
(11) Authorization of the Indentures. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities, each applicable Indenture
has been, or prior to the issuance of the Debt Securities thereunder will
have been, duly authorized, executed and delivered by the Company and, upon
6
such authorization, execution and delivery, will constitute a valid and
legally binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(12) Descriptions of the Underwritten Securities. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement and each
applicable Indenture, as of each Representation Date, will conform in all
material respects to the statements relating thereto contained in the
Prospectus and will be in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration Statement.
(13) Absence of Defaults and Conflicts. Neither the Company, the Bank
nor the Subsidiary is in violation of its charter or by-laws; neither the
Company or any of its subsidiaries is in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound, or
to which any of the assets, properties or operations of the Company or any
of its subsidiaries is subject (collectively, "Agreements and
Instruments"), except for such defaults that would not result in a Material
Adverse Effect. The execution, delivery and performance of this
Underwriting Agreement, the applicable Terms Agreement and each applicable
Indenture and any other agreement or instrument entered into or issued or
to be entered into or issued by the Company in connection with the
transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the Prospectus
(including the issuance and sale of the Underwritten Securities and the use
of the proceeds from the sale of the Underwritten Securities as described
under the caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Company or any
of its subsidiaries pursuant to, any Agreements and Instruments, except for
such conflicts, breaches, defaults or Repayment Events that would not
result in a Material Adverse Effect, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
of its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations, except for such violations as would not result in a Material
7
Adverse Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(14) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Company threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the assets,
properties or operations thereof or the consummation of the transactions
contemplated under the Prospectus, this Underwriting Agreement, the
applicable Terms Agreement or any applicable Indenture or the performance
by the Company of its obligations hereunder and thereunder. The Company and
each of its subsidiaries is in compliance in all material respects with all
laws administered by and regulations applicable to it of the Board of
Governors of the Federal Reserve System, the Federal Deposit Insurance
Corporation and the Office of the Comptroller of the Currency (each a
"Banking Regulator") and of any other federal or state agency or authority
with jurisdiction over it except where failure to so comply would not
result in a Material Adverse Effect. Neither the Company nor any of its
subsidiaries is a party to or otherwise subject to any consent decree,
memorandum of understanding, written commitment or other supervisory
agreement with any Banking Regulator or any other federal or state agency
or authority, nor have the Company or any of its subsidiaries been advised
by any Banking Regulator or any other federal or state agency or authority
that it is contemplating issuing or requesting any of the foregoing except
where being a party to or subject to such consent decree, memorandum of
understanding, written commitment or other supervisory agreement that would
not result in a Material Adverse Effect.
(15) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company of this Underwriting Agreement or the
applicable Terms Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, this Underwriting
Agreement, such Terms Agreement or any applicable Indenture, except such as
have been already made, obtained or rendered, as applicable.
(16) Compliance with Banking Laws. The Company is a bank holding
company registered under the Bank Holding Company Act of 1956, as amended;
and each of the Company and the Bank are in substantial compliance with,
and conduct their respective businesses in substantial conformity with, all
applicable laws and governmental regulations governing bank holding
companies, banks and subsidiaries of bank holding companies, respectively,
except failures to so comply or be in conformity with that could not
reasonably be expected to result in a Material Adverse Effect.
(17) Broker/Dealer Regulation. Except for FTN, First Tennessee
Brokerage, Inc., Midwest Research Securities Corporation, FTN Financial
Capital Markets, a division of First Tennessee Bank National Association,
8
and except as otherwise disclosed in writing to FTN, neither the Company
nor any of the Company's officers or, to the knowledge of the Company, its
directors or 5% or greater shareholders, (i) is required to register as a
"broker" or "dealer" in accordance with the provisions of the 1934 Act or
the rules and regulations thereunder, or (ii) directly, or indirectly
through one or more intermediaries, controls or has any other association
with (within the meaning of Article I of the By-laws of the National
Association of Securities Dealers, Inc. (the "NASD")) any member firm of
the NASD.
(18) Internal Controls. The Company has established and maintains
disclosure controls and procedures (as such term is defined in Rules 13a-14
and 15d-14 under the 1934 Act) that (A) are designed to ensure that
material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company's Chief Executive Officer and
its Chief Financial Officer by others within those entities, particularly
during the periods in which the filings made by the Company with the
Commission which it may make under Section 13(a), 13(c), 14 or 15(d) of the
1934 Act are being prepared, (B) have been evaluated for effectiveness as
of a date within 90 days prior to the filing of the Company's most recent
Annual Report filed with the Commission and (C) are effective to perform
the functions for which they were established.
The accountants and the Audit Committee of the Board of Directors of the
Company have been advised of (x) any significant deficiencies in the design
or operation of internal controls which could adversely affect the
Company's ability to record, process, summarize, and report financial data
and (y) any fraud, whether or not material, that involves management or
other employees who have a role in the Company's internal controls; any
material weaknesses in internal controls have been identified for the
accountants; and since February 27, 2003 (the date of the most recent
evaluation of such disclosure controls and procedures), there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions
with regard to significant deficiencies and material weaknesses.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate
and, unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
9
(b) Payment. Payment of the purchase price for, and delivery of, the
Underwritten Securities shall be made at the offices of Sidley Austin Brown &
Wood LLP, 787 Seventh Avenue, New York, New York 10019 or at such other place as
shall be agreed upon by FTN and the Company, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date of the applicable Terms Agreement (unless
postponed in accordance with the provisions of Section 10 hereof), or such other
time not later than ten business days after such date as shall be agreed upon by
FTN and the Company (such time and date of payment and delivery being herein
called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
FTN for the respective accounts of the Underwriters of the Underwritten
Securities to be purchased by them. It is understood that each Underwriter has
authorized FTN, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Underwritten Securities which it has
severally agreed to purchase. FTN, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Underwritten Securities to be purchased by any Underwriter whose
funds have not been received by the Closing Time, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. The Underwritten Securities shall be in
such denominations and registered in such names as FTN may request in writing at
least one full business day prior to the Closing Time. The Underwritten
Securities will be made available for examination and packaging by FTN in The
City of New York not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with FTN and
with each Underwriter participating in the offering of Underwritten Securities,
as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will notify FTN immediately, and confirm the
notice in writing, of (i) the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
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(b) Filing of Amendments. The Company will give FTN notice of its intention
to file or prepare any amendment to the Registration Statement (including any
filing under Rule 462(b) of the 1933 Act Regulations), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish FTN
with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which FTN or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to FTN and counsel for the Underwriters, without charge, conformed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein),
conformed copies of all consents and certificates of experts, signed copies of
the Company's Annual Report on Form 10-K for the year ended December 31, 2002
and signed copies of all consents and certificates of experts filed therewith
and will also deliver to FTN, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The Registration Statement and
each amendment thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each Underwriter,
without charge, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will furnish
to each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
11
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as FTN may designate and to maintain such
qualifications in effect for a period of not less than one year from the date of
the applicable Terms Agreement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities have been so qualified, the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period of not
less than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the listing of
the Underwritten Securities, prior to the Closing Time, on any national
securities exchange or quotation system if and as specified in the applicable
Terms Agreement.
(j) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the Closing Time or such other date specified in such Terms
Agreement, the Company will not, without the prior written consent of FTN, (1)
offer, sell, contract to sell or otherwise dispose of any Underwritten
Securities or any debt securities of the Company that are substantially similar
to the Underwritten Securities (the "Similar Securities") or securities
convertible into or exchangeable for the Underwritten Securities or Similar
Securities or sell or grant options, rights or warrants with respect to the
Underwritten Securities or Similar Securities or (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of the Underwritten
Securities or Similar Securities, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of the Underwritten
Securities, Similar Securities or other securities, in cash or otherwise.
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(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Underwriting Agreement or the applicable Terms
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any Agreement among Underwriters, the Indentures and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Underwritten Securities, (iii) the preparation,
issuance and delivery of the Underwritten Securities to the Underwriters,
including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Underwritten Securities to the Underwriters,
(iv) the fees and disbursements of the Company's counsel, accountants and other
advisors or agents (including transfer agents and registrars), as well as the
fees and disbursements of the Trustees and their respective counsel, (v) the
qualification of the Underwritten Securities under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, and any amendment thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheet, and the Prospectus and any amendments or supplements thereto, (vii)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities, (viii) the fees and expenses incurred
with respect to the listing of the Underwritten Securities, (ix) the costs and
expenses of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the Underwritten Securities,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of aircraft and other transportation chartered in connection with the road
show, (x) the filing fees incident to, and the reasonable fees and disbursements
of counsel to the Underwriters in connection with, the review, if any, by the
NASD of the terms of the sale of the Underwritten Securities and (xi) the fees
and expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Conduct
Rules), if applicable.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by FTN in accordance with the provisions of Section 5 or Section
9(b)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
13
applicable Terms Agreement are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company or any of its subsidiaries delivered pursuant to
the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities, the specific method of distribution
and similar matters shall have been filed with the Commission in accordance with
Rule 424(b)(1), (2), (3), (4) or (5), as applicable.
(b) Opinion of Counsel for Company and Assistant General Counsel to the
Company. At Closing Time, FTN shall have received the favorable opinion, dated
as of Closing Time, of each of Baker, Donelson, Bearman & Caldwell, counsel for
the Company, and Clyde A. Billings, Jr., Senior Vice President, Assistant
General Counsel and Corporate Secretary of the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, to the effect set
forth in Exhibit B-1 and Exhibit B-2 hereto, respectively, and to such further
effect as counsel to the Underwriters may reasonably request. In giving such
opinion, each such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of Tennessee, the federal law of
the United States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to FTN. Each such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(c) Opinion of Counsel for Underwriters. At Closing Time, FTN shall have
received the favorable opinion, dated as of Closing Time, of Sidley Austin Brown
& Wood LLP, counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, with respect to the
matters set forth in (1), (2), (4) - (7) and (8) of Exhibit B-1 hereto (solely
as to the information in the Prospectus under "Description of the Debt
Securities" or any caption purporting to describe any such Securities), (10),
(11), (14) of Exhibit B-1 hereto and the penultimate paragraph of Exhibit B-1
hereto. In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York, the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to FTN. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
14
enterprise, whether or not arising in the ordinary course of business, and FTN
shall have received a certificate of the President or a Vice President of the
Company and of the chief financial officer or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1(a)
are true and correct with the same force and effect as though expressly made at
and as of the Closing Time, (iii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted, are pending or, to the best of such officer's
knowledge, are threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, FTN shall have received from KPMG LLP a letter dated
such date, in form and substance satisfactory to FTN, together with signed or
reproduced copies of such letter for each of the other Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, FTN shall have received
from KPMG LLP a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (e)
of this Section 5, except that the specified date referred to shall be a date
not more than three business days prior to the Closing Time.
(g) Ratings. At Closing Time, the Underwritten Securities shall have the
ratings accorded by any "nationally recognized statistical rating organization",
as defined by the Commission for purposes of Rule 436(g)(2) of the 1933 Act
Regulations, if and as specified in the applicable Terms Agreement, and the
Company shall have delivered to FTN a letter, dated as of such date, from each
such rating organization, or other evidence satisfactory to FTN, confirming that
the Underwritten Securities have such ratings. Since the time of execution of
such Terms Agreement, there shall not have occurred a downgrading in, or
withdrawal of, the rating assigned to the Underwritten Securities or any of the
Company's other securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under surveillance or
review its rating of the Underwritten Securities or any of the Company's other
securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities shall
have been approved for listing, subject only to official notice of issuance, if
and as specified in the applicable Terms Agreement.
(i) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(j) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities as herein contemplated, or in order to evidence the
15
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Underwritten Securities as herein
contemplated shall be satisfactory in form and substance to FTN and counsel for
the Underwriters.
(k) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement may be terminated by FTN by notice to the Company
at any time at or prior to the Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(3) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by FTN), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through FTN expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
16
amendment or supplement thereto); provided, further, however, that with respect
to any untrue statement or omission of material fact made in any preliminary
prospectus, the indemnity agreement contained in this Section 6(a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the securities concerned, to the
extent that any such loss, claim, damage or liability of such Underwriter occurs
under the circumstance where (i) the Company had previously furnished copies of
the Prospectus to the Underwriter, (ii) delivery of the Prospectus was required
by Act to be made to such person, (iii) the untrue statement or alleged untrue
statement or omission or alleged omission of material fact contained in the
preliminary prospectus was corrected in the Prospectus and (iv) there was not
sent or given to such person, at or prior to the written confirmation of such
securities to such person, a copy of the Prospectus.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through FTN
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by FTN, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate
at its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
17
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of such Underwritten Securities as
set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
18
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company or any of its subsidiaries submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by FTN upon the giving of 30 days' prior written notice of such
termination to the other party hereto.
(b) Terms Agreement. FTN may terminate the applicable Terms Agreement, by
notice to the Company, at any time at or prior to the Closing Time if (i) there
has been, since the time of execution of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or the international
19
financial markets, or any outbreak or escalation of hostilities or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of FTN,
impracticable or inadvisable to market the Underwritten Securities or to enforce
contracts for the sale of the Underwritten Securities, or (iii) trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the New
York Stock Exchange or the American Stock Exchange or in the Nasdaq Stock Market
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by
either of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or (iv) a banking moratorium has been
declared by either Federal or Tennessee authorities or, if the Underwritten
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, by the relevant authorities in the
related foreign country or countries, or (v) there has been a material
disruption in securities settlement, payment or clearance services in the United
States, or (vi) there shall have come to the attention of FTN any facts that
would cause them to reasonably believe that the Prospectus, at the time it was
required to be delivered to a purchaser of the Underwritten Securities, included
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
existing at the time of such delivery, not misleading. As used in this Section
9, the term "Prospectus" means the Prospectus in the form first provided to the
Underwriters for use in confirming sales of the related Underwritten Securities.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then FTN shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, FTN shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on such
date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the number or aggregate principal amount, as
20
the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
the applicable Terms Agreement, either FTN or the Company shall have the right
to postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to FTN at 845 Crossover Lane, Suite 150, Memphis,
Tennessee 38117, facsimile (901) 537-7872, attention of James D. Wingett,
Managing Director; and notices to the Company shall be directed to it at First
Tennessee National Corporation, 165 Madison Avenue, Memphis, Tennessee 38103,
attention of Milton A. Gutelius, Jr., Senior Vice President and Treasurer.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
FTN and, upon execution of such Terms Agreement, any other Underwriters and
their respective successors. Nothing expressed or mentioned in this Underwriting
Agreement or such Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW. THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE
TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TENNESSEE.
SECTION 14. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
21
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between FTN and the Company in accordance with its terms.
Very truly yours,
FIRST TENNESSEE NATIONAL CORPORATION
By:/s/Milton A. Gutelius, Jr.
--------------------------------------------
Name: Milton A. Gutelius, Jr.
Title: Senior Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
FTN FINANCIAL SECURITIES CORP.
By:/s/James D. Wingett
--------------------------------
Name: James D. Wingett
Title: Managing Director
22
Exhibit A
FTN Financial Securities Corp
(a Tennessee corporation)
Debt Securities
TERMS AGREEMENT
[.], 2003
To: First Tennessee National Corporation
165 Madison Avenue
Memphis, Tennessee 38103
Ladies and Gentlemen:
We understand that First Tennessee National Corporation, a Tennessee
corporation (the "Company"), proposes to issue and sell $o aggregate principal
amount of [senior] [subordinated] debt securities (such securities also being
hereinafter referred to as the "Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, we [the
underwriters named below (the "Underwriters")] offer to purchase [, severally
and not jointly,] the principal amount of Underwritten Securities opposite our
names set forth below at the purchase price set forth below.
A-1
Principal Amount of
Underwriter Underwritten Securities
------------------------------------------------- ----------------------------
Total............................................ [$ ]
=========
The Underwritten Securities shall have the following terms:
Debt Securities
---------------
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share:______% of
the principal amount, plus accrued interest [amortized original issue
discount], if any, from _________________.
Purchase price: ___% of principal amount, plus accrued interest [amortized
original issue discount], if any, from -----------------.
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "FIRST TENNESSEE NATIONAL CORPORATION - Debt Securities - Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
A-2
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
FTN FINANCIAL SECURITIES CORP.
By
---------------------------
Authorized Signatory
Accepted:
FIRST TENNESSEE NATIONAL CORPORATION
By:
----------------------------------
Name:
Title:
A-3
Exhibit B-1
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Tennessee.
(2) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement.
(3) The Company has been duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended.
(4) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(5) The Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting Agreement and
the applicable Terms Agreement. The Underwritten Securities, when issued
and authenticated in the manner provided for in the applicable Indenture
and delivered against payment of the consideration therefor specified in
such Terms Agreement, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding
in equity or at law), and except further as enforcement thereof may be
limited by requirements that a claim with respect to any Debt Securities
payable in a foreign or corporate currency (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S. dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States. The Underwritten Securities
are in the form contemplated by, and each registered holder thereof is
entitled to the benefits of, the applicable Indenture.
(6) The applicable Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery thereof by the applicable Trustee) constitutes a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent
B-1-1
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding
in equity or at law).
(7) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and the applicable Indenture conform in all material
respects to the statements relating thereto contained in the Prospectus and
are in substantially the form filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement.
(8) The information in the Prospectus under "Description of Debt
Securities" and "Description of the Notes" or any caption purporting to
describe any such Securities and in the Registration Statement under Item
15, to the extent that it constitutes matters of law, summaries of legal
matters or the Company's charter, bylaws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material
respects.
(9) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described
as required.
(10) The Registration Statement (including any Rule 462(b)
Registration Statement) has been declared effective under the 1933 Act. Any
required filing of the Prospectus pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b). To the best
of our knowledge, no stop order suspending the effectiveness of the
Registration Statement (or such Rule 462(b) Registration Statement) has
been issued under the 1933 Act and no proceedings for that purpose have
been initiated or are pending or threatened by the Commission.
(11) The Registration Statement (including any Rule 462(b)
Registration Statement) and each amendment or supplement to the
Registration Statement (including any Rule 462(b) Registration Statement)
made by the Company prior to the date hereof (excluding the documents
incorporated by reference therein and other than the financial statements
and supporting schedules included therein or omitted therefrom and each
Trustee's Statement of Eligibility on Form T-1 (the "Form T-1s"), as to
which we express no opinion), when the Registration Statement (including
any Rule 462(b) Registration Statement) or any such amendment or supplement
became effective, complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations. The Prospectus
and each amendment or supplement to the Prospectus made by the Company
prior to the date hereof (excluding the documents incorporated by reference
therein and other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which we express no opinion),
when they were filed with the Commission, complied, and as of the date
hereof comply, as to form in all material respects with the requirements of
1933 Act and the 1933 Act Regulations.
(12) The documents incorporated by reference into the Prospectus or
any further amendments or supplements thereto made by the Company prior to
the date hereof (other than the financial statements and supporting
schedules therein or omitted therefrom, as to which we express no opinion),
when they were filed with the Commission, complied, and as of the date
hereof comply, as to form in all
B-1-2
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder.
(13) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
due authorization, execution or delivery by the Company of the Underwriting
Agreement or the applicable Terms Agreement or for the performance by the
Company of the transactions contemplated under the Prospectus, the
Underwriting Agreement, such Terms Agreement or the applicable Indenture,
other than under the 1933 Act, the 1933 Act Regulations, the 1939 Act and
the 1939 Act Regulations, which have already been made, obtained or
rendered, as applicable.
(14) The applicable Indenture has been duly qualified under the 1939
Act.
(15) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
Nothing has come to our attention that would lead us to believe that the
Registration Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom and for
the Form T-1s, as to which we make no statement), at the time of the filing of
the Company's most recent Annual Report on Form 10-K with the Commission or at
the date of the applicable Terms Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and supporting schedules and other financial data included therein or
omitted therefrom, as to which we make no statement), at the time the Prospectus
was issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of New York, upon the opinion of Sidley
Austin Brown & Wood LLP (which opinion shall be dated and furnished to FTN at
the Closing Time and shall expressly state that such counsel may rely on such
opinion as if it were addressed to them), provided that Baker, Donelson, Bearman
& Caldwell shall state in their opinion that they believe that they are
justified in relying upon such opinion, and (B) as to matters of fact (but not
as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
B-1-3
Exhibit B-2
FORM OF OPINION OF CLYDE A. BILLINGS, JR., SENIOR VICE PRESIDENT,
ASSISTANT GENERAL COUNSEL AND CORPORATE SECRETARY OF THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Tennessee.
(2) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement.
(3) The Company has been duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended.
(4) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
or be in good standing would not result in a Material Adverse Effect.
(5) The Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation. The Bank has been duly organized and is validly existing as
a national banking association under the laws of the United States. The
Subsidiary has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not result in a Material Adverse Effect. Except as otherwise
described in the Prospectus, all of the issued and outstanding capital
stock of each of the Subsidiary and the Bank has been duly authorized and
is validly issued, fully paid and non-assessable (except, in the case of
the Bank, as provided in 12 U.S.C. ss. 55, as amended) and, to the best of
our knowledge, is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. None of the outstanding shares of capital
stock of each of the Subsidiary and the Bank was issued in violation of
preemptive or other similar rights of any securityholder of such Subsidiary
or the Bank, as the case may be. The Bank is an insured bank under the
applicable provisions of the Federal Deposit Insurance Act, as amended, and
no proceeding for the termination or revocation of such insurance is
pending or, to our knowledge, threatened against any such subsidiary. The
Bank has no subsidiaries that are depository institutions with deposits
insured under the provisions of the Federal Deposit Insurance Act, as
amended.
B-2-1
(6) The authorized, issued and outstanding shares of capital stock of
the Company is as set forth in the column entitled "Actual" under the
caption "Capitalization" in the Prospectus (except for subsequent issuances
thereof, if any, contemplated under the Underwriting Agreement, pursuant to
reservations, agreements or employee benefit plans, referred to in the
Prospectus, pursuant to the exercise of convertible securities or options
referred to in the Prospectus, or subsequent repurchases thereof, if any,
pursuant to publicly announced stock repurchase programs). Such shares of
capital stock have been duly authorized and validly issued by the Company
and are fully paid and non-assessable, and none of such shares of capital
stock was issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(7) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(8) The Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting Agreement and
the applicable Terms Agreement.
(9) The applicable Indenture has been duly authorized, executed and
delivered by the Company.
(10) The information in the Prospectus under "Description of Debt
Securities" and "Description of Notes" or any caption purporting to
describe any such Securities and in the Registration Statement under Item
15, to the extent that it constitutes matters of law, summaries of legal
matters or the Company's charter, bylaws or legal proceedings, or legal
conclusions, has been reviewed by me and is correct in all material
respects.
(11) To the best of my knowledge, neither the Company, the Subsidiary
nor the Bank is in violation of its charter or by-laws (or equivalent
document) and no default by the Company or any of its subsidiaries exists
in the due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is described
or referred to in the Registration Statement or the Prospectus or filed or
incorporated by reference as an exhibit to the Registration Statement,
other than such defaults that individually or in the aggregate would not
have a Material Adverse Effect, or would not materially adversely affect
the issue and sale of the Underwritten Securities or the consummation of
the transactions contemplated hereby.
(12) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement, the applicable Indenture and the
supplemental indenture to the Indenture under which the Underwritten
Securities will be issued, and the consummation of the transactions
contemplated in the Underwriting Agreement and such Terms Agreement and in
the Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the
sale of the Underwritten Securities as described under the caption "Use of
Proceeds") and compliance by the Company with its obligations thereunder do
not and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default or
Repayment Event under, or result in the creation or imposition of any lien,
B-2-2
charge or encumbrance upon any assets, properties or operations of the
Company, the Bank or the Subsidiary pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to me, to which the Company, the Bank or the
Subsidiary is subject, other than such conflicts, breaches, violations or
defaults or Repayment Events that, individually or on a cumulative basis,
would not have a Material Adverse Effect or would not materially adversely
affect the issue and sale of the Underwritten Securities or the
consummation of the transactions contemplated thereby, nor will such action
result in any violation of the provisions of the charter or by-laws (or
equivalent document) of the Company, the Bank or the Subsidiary or any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to me, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
Subsidiaries or any of their assets, properties or operations, except for
such violations as would not result in a Material Adverse Effect.
(13) To the best of my knowledge and other than as set forth in the
Prospectus, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation to which the Company or any of its
subsidiaries thereof is a party or to which the assets, properties or
operations of the Company or any of its subsidiaries thereof is subject,
before or by any court or governmental agency or body, domestic or foreign,
which might reasonably be expected to result in a Material Adverse Effect
or which might reasonably be expected to materially and adversely affect
the assets, properties or operations thereof or the consummation of the
transactions contemplated under the Underwriting Agreement, the applicable
Terms Agreement or the applicable Indenture or the performance by the
Company of its obligations thereunder. To the best of my knowledge, the
Company and each of its subsidiaries is in compliance with all laws
administered by and regulations applicable to it of any Banking Regulator
and of any other federal or state agency or authority with jurisdiction
over it except where failure to so comply would not result in a Material
Adverse Effect. To the best of my knowledge, neither the Company nor any of
its subsidiaries is a party to or otherwise subject to any consent decree,
memorandum of understanding, written commitment or other supervisory
agreement with any Banking Regulator or any other federal or state agency
or authority, nor have the Company or any of its subsidiaries been advised
by any Banking Regulator or any other federal or state agency or authority
that it is contemplating issuing or requesting any of the foregoing except
where being a party to or subject to such consent decree, memorandum of
understanding, written commitment or other supervisory agreement would not
result in a Material Adverse Effect.
(14) All descriptions in the Prospectus of contracts and other
documents to which the Company or its subsidiaries are a party are accurate
in all material respects. To the best of our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in the
Prospectus or to be filed as exhibits to the Registration Statement other
B-2-3
than those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
(15) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described
as required.
(16) The Registration Statement (including any Rule 462(b)
Registration Statement) and each amendment or supplement to the
Registration Statement (including any Rule 462(b) Registration Statement)
made by the Company prior to the date hereof (excluding the documents
incorporated by reference therein and other than the financial statements
and supporting schedules included therein or omitted therefrom and each
Trustee's Statement of Eligibility on Form T-1 (the "Form T-1s"), as to
which we express no opinion), when the Registration Statement (including
any Rule 462(b) Registration Statement) or any such amendment or supplement
became effective, complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations. The Prospectus
and each amendment or supplement to the Prospectus made by the Company
prior to the date hereof (excluding the documents incorporated by reference
therein and other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which we express no opinion),
when they were filed with the Commission, complied, and as of the date
hereof comply, as to form in all material respects with the requirements of
1933 Act and the 1933 Act Regulations.
(17) The documents incorporated by reference into the Prospectus or
any further amendments or supplements thereto made by the Company prior to
the date hereof (other than the financial statements and supporting
schedules therein or omitted therefrom, as to which we express no opinion),
when they were filed with the Commission, complied, and as of the date
hereof comply, as to form in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission thereunder.
(18) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
due authorization, execution or delivery by the Company of the Underwriting
Agreement or the applicable Terms Agreement or for the performance by the
Company of the transactions contemplated under the Prospectus, the
Underwriting Agreement, such Terms Agreement or the applicable Indenture,
other than under the 1933 Act, the 1933 Act Regulations, the 1939 Act and
the 1939 Act Regulations, which have already been made, obtained or
rendered, as applicable.
Nothing has come to my attention that would lead me to believe that the
Registration Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom and for
the Form T-1s, as to which I make no statement), at the time of the filing of
the Company's most recent Annual Report on Form 10-K with the Commission or at
the date of the applicable Terms Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and supporting schedules and other financial data included therein or
omitted therefrom, as to which I make no statement), at the time the Prospectus
B-2-4
was issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of New York, upon the opinion of Sidley
Austin Brown & Wood LLP (which opinion shall be dated and furnished to FTN at
the Closing Time and shall expressly state that such counsel may rely on such
opinion as if it were addressed to him), provided that Clyde A. Billings, Jr.,
shall state in his opinion that he believes that he is justified in relying upon
such opinion, and (B) as to matters of fact (but not as to legal conclusions),
to the extent he deems proper, on certificates of responsible officers of the
Company and public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
B-2-5
Annex I
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
We are independent public accountants with respect to the Company and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations
and:
(i) in our opinion, the audited consolidated financial statements and
the related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in accordance
with generally accepted auditing standards) consisting of a reading of the
unaudited interim consolidated financial statements of the Company for the
[three- month periods ended _________, 20__ and _________, 20__, the three-
and six-month periods ended _________, 20__ and _________, 20__ and the
three- and nine-month periods ended _________, 20__ and _________, 20__,
included or incorporated by reference in the Registration Statement and the
Prospectus (collectively, the "10-Q Financials")] [, a reading of the
unaudited interim consolidated financial statements of the Company for the
_____-month periods ended _________, 20___ and _________, 20___, included
or incorporated by reference in the Registration Statement and the
Prospectus (the "_____-month financials")] [, a reading of the latest
available unaudited interim consolidated financial statements of the
Company], a reading of the minutes of all meetings of the stockholders and
directors of the Company and its subsidiaries and committees thereof since
[day after end of last audited period], inquiries of certain officials of
the Company and its subsidiaries responsible for financial and accounting
matters, a review of interim financial information in accordance with
standards established by the American Institute of Certified Public
Accountants in Statement on Auditing Standards No. 100, ("SAS 100"), with
respect to the [description of relevant periods] and such other inquiries
and procedures as may be specified in such letter, nothing came to our
attention that caused us to believe that:
(A) the 10-Q Financials included or incorporated by reference in
the Registration Statement and the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations applicable to unaudited
financial statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials included or
incorporated by reference in the Registration Statement and the
Prospectus for them to be in conformity with generally accepted
accounting principles;
[(B) the _____-month financials included or incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements included in
Annex I-1
registration statements or any material modifications should be made
to the _____-month financials included in the Registration Statement
and the Prospectus for them to be in conformity with generally
accepted accounting principles;]
(C) at [_________, 20___ and at] a specified date not more than
five days prior to the date of the applicable Terms Agreement, there
was any change in the ___________ of the Company and its subsidiaries,
any decrease in the __________ of the Company and its subsidiaries or
any increase in the __________ of the Company and its subsidiaries, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Registration Statement
and the Prospectus, except in each case for any changes, decreases or
increases that the Registration Statement and the Prospectus disclose
have occurred or may occur; or
(D) for the period from [_________, 20__ to _________, 20__ and
for the period from] _________, 20__ to a specified date not more than
five days prior to the date of the applicable Terms Agreement, there
was any decrease in _________, __________ or ___________, in each case
as compared with the comparable period in the preceding year, except
in each case for any decreases that the Registration Statement and the
Prospectus discloses have occurred or may occur;
[(iii) based upon the procedures set forth in clause (ii) above and a
reading of the Selected Financial Data included or incorporated by
reference in the Registration Statement and the Prospectus [and a reading
of the financial statements from which such data were derived], nothing
came to our attention that caused us to believe that the Selected Financial
Data included or incorporated by reference in the Registration Statement
and the Prospectus do not comply as to form in all material respects with
the disclosure requirements of Item 301 of Regulation S-K of the 1933 Act
[, that the amounts included in the Selected Financial Data are not in
agreement with the corresponding amounts in the audited consolidated
financial statements for the respective periods or that the financial
statements not included or incorporated by reference in the Registration
Statement and the Prospectus from which certain of such data were derived
are not in conformity with generally accepted accounting principles;]
(iv) we have compared the information included or incorporated by
reference in the Registration Statement and the Prospectus under selected
captions with the disclosure requirements of Regulation S-K of the 1933 Act
and on the basis of limited procedures specified herein, nothing came to
our attention that caused us to believe that such information does not
comply as to form in all material respects with the disclosure requirements
of Items 302, 402 and 503(d), respectively, of Regulation S-K;
[(v) based upon the procedures set forth in clause (ii) above, a
reading of the latest available unaudited financial statements of the
Company that have not been included or incorporated by reference in the
Registration Statement and the Prospectus and a review of such financial
statements in accordance with SAS 100, nothing came to our attention that
caused us to believe that the unaudited amounts for ________ for the [most
recent period] do not agree with the amounts set forth in the unaudited
consolidated financial statements for those periods or that such unaudited
Annex I-2
amounts were not determined on a basis substantially consistent with that
of the corresponding amounts in the audited consolidated financial
statements;]
[(vi) we are unable to and do not express any opinion on the [Pro
Forma Combined Balance Sheet and Statement of Operations] (collectively,
the "Pro Forma Statements") included or incorporated by reference in the
Registration Statement and the Prospectus or on the pro forma adjustments
applied to the historical amounts included in the Pro Forma Statements;
however, for purposes of this letter we have:
(A) read the Pro Forma Statements;
(B) performed [an audit] [a review in accordance with SAS 100] of
the financial statements to which the pro forma adjustments were
applied;
(C) made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the basis
for their determination of the pro forma adjustments and whether the
Pro Forma Statements comply as to form in all material respects with
the applicable accounting requirements of Rule 11-02 of Regulation
S-X; and
(D) proved the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the Pro Forma
Statements; and
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe
that the Pro Forma Statements included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those statements;]
(vii) in addition to the procedures referred to in clause (ii) above,
we have performed other procedures, not constituting an audit, with respect
to certain amounts, percentages, numerical data and financial information
included or incorporated by reference in the Registration Statement and the
Prospectus, which are specified herein, and have compared certain of such
items with, and have found such items to be in agreement with, the
accounting and financial records of the Company; and
[(viii) in addition, we [add comfort on a financial forecast that is
included or incorporated by reference in the Registration Statement and the
Prospectus].
Annex I-3
Exhibit 2.2
FTN Financial Securities Corp
(a Tennessee corporation)
Debt Securities
TERMS AGREEMENT
---------------
May 7, 2003
To: First Tennessee National Corporation
165 Madison Avenue
Memphis, Tennessee 38103
Ladies and Gentlemen:
We understand that First Tennessee National Corporation, a Tennessee
corporation (the "Company"), proposes to issue and sell $100,000,000 aggregate
principal amount of subordinated debt securities (such securities also being
hereinafter referred to as the "Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, we (the
"Underwriter") offer to purchase the principal amount of Underwritten Securities
opposite our name set forth below at the purchase price set forth below.
Principal Amount of
Underwriter Underwritten Securities
----------------------------------------------------- -----------------------
FTN Financial Securities Corp. $100,000,000
The Underwritten Securities shall have the following terms:
Debt Securities
---------------
Title: 4.50% Subordinated Notes due May 15, 2013
Rank: Subordinated
Ratings: A3/BBB+
Aggregate principal amount: $100,000,000
Denominations: $1,000
Currency of payment: U.S. Dollars
Interest rate or formula: 4.50% per annum 30/360
Interest payment dates: May 15/November 15
Regular record dates: May 1/November 1
Stated maturity date: May 15, 2013
Redemption provisions: N/A
Sinking fund requirements: N/A
Conversion provisions: N/A
Listing requirements: N/A
Black-out provisions: N/A
Fixed or Variable Price Offering: Fixed Price Offering
If Fixed Price Offering, initial public offering price per share: 100%
of the principal amount, plus accrued interest, if any, from May 12,
2003.
Purchase price: 99.35% of principal amount, plus accrued interest, if any, from
May 12, 2003.
Form: Global
Other terms and conditions: N/A
Closing date and location: May 12, 2003 Sidley Austin Brown & Wood LLP, 787
Seventh Avenue, New York, New York 10019
All of the provisions contained in the document attached as Annex I hereto
entitled "FIRST TENNESSEE NATIONAL CORPORATION - Debt Securities - Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
2
Please accept this offer no later than 11:59 P.M. (New York City time) on
May 7, 2003 by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours,
FTN FINANCIAL SECURITIES CORP.
By: /s/James D. Wingett
---------------------------
Name: James D. Wingett
Title: Managing Director
Accepted:
FIRST TENNESSEE NATIONAL CORPORATION
By:/s/Milton A. Gutelius, Jr.
-------------------------------
Name: Milton A. Gutelius, Jr.
Title: Senior Vice President and Treasurer
3
Exhibit 4.1
EXECUTION COPY
SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE, dated as of May 12, 2003, by and among First
Tennessee National Corporation, a Tennessee corporation (the "Company"), and
Bank One Trust Company, National Association, a national banking association, as
trustee under the Indenture with respect to the Notes (defined below) (the
"Additional Trustee"). Each of The Bank of New York, a New York banking
corporation, as trustee under the Indenture (as defined below) with respect to
the series of Securities (as defined in the Indenture) issued prior to the date
hereof (the "Initial Trustee"), and the Additional Trustee, and each other
trustee appointed as such with respect to the Securities of any series issued
under the Indenture, shall be the "Trustee" (as defined in the Indenture,
supplemented hereby) for all purposes under the Indenture with respect to the
applicable series of Securities.
WITNESSETH:
WHEREAS, the Company and the Initial Trustee entered into that certain
indenture (the "Indenture") dated as of November 1, 1995, providing for the
issuance of Securities in series by the Company;
WHEREAS, the Company desires to create and authorize the 4.50% Subordinated
Notes due May 15, 2013 (hereinafter referred to as the "Notes") in an initial
aggregate principal amount of One Hundred Million Dollars ($100,000,000) and, to
provide the terms and conditions upon which the Notes are to be executed,
registered, authenticated, issued and delivered, the Company has duly authorized
the execution and delivery of this Supplemental Indenture;
WHEREAS, Section 901(7) of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the consent
of any Holders (as defined in the Indenture) to make provisions to establish the
form or terms of Securities of any series as permitted by Sections 201 and 301
of the Indenture;
WHEREAS, pursuant to Section 901(5) of the Indenture, the Company has
determined to appoint the Additional Trustee as a trustee under the Indenture,
to serve as trustee with respect to the Notes; and
WHEREAS, the Company has furnished the Additional Trustee with (i) an
Opinion of Counsel stating that the execution of this Supplemental Indenture is
authorized or permitted by the Indenture and (ii) a copy of the resolutions of
its Board of Directors certified by its Secretary, pursuant to which this
Supplemental Indenture has been authorized;
WHEREAS, all acts and things necessary to make the Notes of this series,
when executed by the Company and authenticated and delivered by or on behalf of
the Trustee as provided in the Indenture, the valid, binding and legal
obligations of the Company, and for this Supplemental Indenture to constitute a
valid indenture and agreement according to its terms, have been done and
performed.
NOW, THEREFORE, in order to declare the terms and conditions upon which the
Notes of this series are executed, registered, authenticated, issued and
delivered, and in consideration of the purchase and acceptance of such Notes by
the Holders thereof, the Company covenants and agrees with the Additional
Trustee, for the equal and proportionate benefit of the respective Holders from
time to time of such Notes, and, as to Part II hereof, all Securities of the
series thereof, as follows:
PART I
CREATION AND AUTHORIZATION OF SERIES
Section 1.1. There is hereby created and authorized the series of
Securities entitled "4.50% Subordinated Notes due May 15, 2013", which shall be
a series limited initially to $100,000,000 aggregate principal amount (except
for Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes of this series pursuant to Sections
304, 305, 306 or 906 and except for any Notes that, pursuant to Section 303,
shall not have been issued or sold by the Company and are therefore deemed never
to have been authenticated and delivered under the Indenture), and except
further that the Company may, without the consent of Holders, reopen this series
of Securities and issue additional Notes having the same tenor and terms
(including, without limitation, rights to receive accrued and unpaid interest as
the Notes then Outstanding) as the Notes or to establish additional terms of the
Notes. For all purposes of the Indenture, the term "Notes" shall include the
Notes initially issued on the date of original issuance of the Notes and any
other Notes issued after such date under the Indenture, as supplemented hereby.
For purposes of the Indenture, as supplemented hereby, all Notes shall vote
together and otherwise constitute a single series of Securities under the
Indenture, as supplemented. The Notes shall be issued initially in the form of
one or more permanent global Securities ("Global Notes"). The initial Depositary
for the Global Notes shall be The Depositary Trust Company. The Global Notes
shall be registered in the name of the Depositary or a nominee of the Depositary
and deposited with the Additional Trustee, as custodian for the Depositary.
Section 1.2. The Notes and the certificates of authentication to be borne
by the Notes are to be substantially in the form of Exhibit A hereto and shall
have such additional terms as contained therein.
PART II
APPOINTMENT OF ADDITIONAL TRUSTEE
Section 2.1. The Company hereby appoints the Additional Trustee as trustee
under the Indenture with respect to the Notes and each other series of
Securities for which the Additional Trustee shall be appointed by the Company
pursuant to Sections 301(23) and 609 of the Indenture, as amended hereby, to act
as Trustee under the Indenture, and confirms to the Additional Trustee all of
the rights, powers, and trusts of a Trustee under the Indenture with respect to
the Notes and each other series of Securities for which the Additional Trustee
shall be appointed by the Company to act as Trustee under the Indenture. The
Additional Trustee is hereby appointed the Securities Registrar and Paying Agent
for the Notes. The Company shall execute and deliver such further instruments
and do such other things as the Additional Trustee may reasonably require to
more fully and certainly vest and confirm in the Additional Trustee all the
rights, trusts, and powers hereby delivered and confirmed upon the Additional
Trustee hereunder and under the Indenture.
2
Section 2.2. The Additional Trustee hereby represents and warrants to the
Company that the Additional Trustee is qualified under the provisions of Section
310 of the Trust Indenture Act of 1939, as amended, and Section 609 of the
Indenture, as supplemental hereby, to act as trustee with respect to the Notes
under the Indenture.
Section 2.3. The Additional Trustee hereby accepts its appointment as
trustee with respect to the Notes and shall hereby be vested with all the
authority, rights, powers, trusts, immunities, duties, benefits and obligations
of a trustee under the Indenture.
PART III
ADDITIONAL TERMS
Section 3.1. Section 105 of the Indenture is hereby supplemented by
deleting the final word "or" from subparagraph 105(1) and adding the following
subparagraph after subparagraph 105(1):
"(1.1) with respect to Holders of the Notes, the Additional Trustee by
any such Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the
Additional Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, which office is located at 1 Bank One Plaza, Mail
Code IL1-0823, Chicago, Illinois 60670, or".
Section 3.2. Section 301 of the Indenture is hereby supplemented by adding
the following final paragraph:
"The Notes need not be issued at the same time and may be reopened for
issuances of additional Notes of such series or to establish additional
terms that shall apply to all the Notes of any such series."
PART IV
MISCELLANEOUS PROVISIONS
The Indenture, this Supplemental Indenture and the Notes shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of law.
The Additional Trustee makes no undertaking or representations in respect
of, and shall not be responsible in any manner whatsoever for and in respect of,
the validity or sufficiency of this Supplemental Indenture or the proper
authorization or the due execution hereof by the Company or for or in respect of
the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company.
3
Except as expressly amended hereby, the Indenture shall continue in full
force and effect in accordance with the provisions thereof and the Indenture is
in all respects hereby ratified and confirmed. This Supplemental Indenture and
all its provisions shall be deemed a part of the Indenture in the manner and to
the extent herein and therein provided.
This Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
4
IN WITNESS WHEREOF, each of First Tennessee National Corporation and the
Additional Trustee has caused this Supplemental Indenture to be signed and
delivered, all as of the day and year first written above.
FIRST TENNESSEE NATIONAL CORPORATION
By:/s/Milton A. Gutelius, Jr.
-------------------------------------------
Name: Milton A. Gutelius, Jr.
Title: Senior Vice President and Treasurer
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION
By:/s/Benita A. Pointer
---------------------------------------
Name: Benita A. Pointer, CCTS
Title: Account Executive/Vice President
5
Exhibit A
FORM OF NOTE
THIS NOTE IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE (AS
DEFINED BELOW) AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR
A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY OTHER PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
FIRST TENNESSEE NATIONAL CORPORATION
4.50% Subordinated Note Due May 15, 2013
Cusip No. 337162AE1
No. 1 $100,000,000
First Tennessee National Corporation, a corporation duly organized and
existing under the laws of Tennessee (herein called the "Company", which term
includes any successor Person under the Indenture (defined below)), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of One Hundred Million Dollars ($100,000,000) on May 15, 2013, and
to pay interest thereon from May 12, 2003 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on May 15th and November 15th in each year, commencing November 15, 2003, at the
rate of 4.50% per annum, until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the May 1st or November 1st (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
6
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in Chicago, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: May 12, 2003
FIRST TENNESSEE NATIONAL CORPORATION
By:
-------------------------------------------
Attest:
---------------------------------
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------------
Authorized Officer
7
REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of November 1, 1995, as supplemented (herein
called the "Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York, as Initial Trustee
under the Indenture with respect to all securities issued thereunder prior to
the date hereof and, with respect to the Securities and each other series of
securities for which the Additional Trustee (as defined below) shall be
appointed by the Company pursuant to Section 301 of the Indenture, as
supplemented by the Supplemental Indenture dated as of May 12, 2003 between the
Company and the Additional Trustee, Bank One Trust Company, National Association
(herein called the "Additional Trustee" and, together with the Initial Trustee,
the "Trustee", which term includes any successor trustee under the Indenture),
and reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee, the holders of Senior Indebtedness, Entitled Persons, and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof.
The Company covenants and agrees, and each Holder of this Security, by his
acceptance hereof, likewise covenants and agrees, that, to the extent and in the
manner set forth in Article Fourteen of the Indenture, the indebtedness
represented by the Securities and the payment of principal of (and premium, if
any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness. In addition, this Security is also issued subordinate and
subject to the provisions of the Indenture regarding prior payment in full to
Entitled Persons in respect of Other Financial Obligations. The Indenture also
provides that if, upon the occurrence of certain events of bankruptcy or
insolvency relating to the Company, there remains, after giving effect to such
subordination provisions, any amount of cash, property or securities available
for payment or distribution in respect of Securities of this series (as defined
in the Indenture, "Excess Proceeds"), and if, at such time, any Entitled Person
has not received payment in full of all amounts due or to become due on or in
respect of Other Financial Obligations, then such Excess Proceeds shall first be
applied to pay or provide for the payment in full of such Other Financial
Obligations before any payment or distribution may be made in respect of
Securities of such series. Each Holder of this Security, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination and payment of Excess Proceeds as provided in
the Indenture and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
8
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
9
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflicts of law.
All capitalized terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
10
Exhibit 4.2
FORM OF NOTE
THIS NOTE IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE (AS
DEFINED BELOW) AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR
A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY OTHER PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
FIRST TENNESSEE NATIONAL CORPORATION
4.50% Subordinated Note Due May 15, 2013
Cusip No. 337162AE1
No. 1 $100,000,000
First Tennessee National Corporation, a corporation duly organized and
existing under the laws of Tennessee (herein called the "Company", which term
includes any successor Person under the Indenture (defined below)), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of One Hundred Million Dollars ($100,000,000) on May 15, 2013, and
to pay interest thereon from May 12, 2003 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on May 15th and November 15th in each year, commencing November 15, 2003, at the
rate of 4.50% per annum, until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the May 1st or November 1st (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in Chicago, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: May 12, 2003
FIRST TENNESSEE NATIONAL CORPORATION
By:
--------------------------------------
Attest:
-----------------------------
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------------
Authorized Officer
2
REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of November 1, 1995, as supplemented (herein
called the "Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York, as Initial Trustee
under the Indenture with respect to all securities issued thereunder prior to
the date hereof and, with respect to the Securities and each other series of
securities for which the Additional Trustee (as defined below) shall be
appointed by the Company pursuant to Section 301 of the Indenture, as
supplemented by the Supplemental Indenture dated as of May 12, 2003 between the
Company and the Additional Trustee, Bank One Trust Company, National Association
(herein called the "Additional Trustee" and, together with the Initial Trustee,
the "Trustee", which term includes any successor trustee under the Indenture),
and reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee, the holders of Senior Indebtedness, Entitled Persons, and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof.
The Company covenants and agrees, and each Holder of this Security, by
his acceptance hereof, likewise covenants and agrees, that, to the extent and in
the manner set forth in Article Fourteen of the Indenture, the indebtedness
represented by the Securities and the payment of principal of (and premium, if
any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness. In addition, this Security is also issued subordinate and
subject to the provisions of the Indenture regarding prior payment in full to
Entitled Persons in respect of Other Financial Obligations. The Indenture also
provides that if, upon the occurrence of certain events of bankruptcy or
insolvency relating to the Company, there remains, after giving effect to such
subordination provisions, any amount of cash, property or securities available
for payment or distribution in respect of Securities of this series (as defined
in the Indenture, "Excess Proceeds"), and if, at such time, any Entitled Person
has not received payment in full of all amounts due or to become due on or in
respect of Other Financial Obligations, then such Excess Proceeds shall first be
applied to pay or provide for the payment in full of such Other Financial
Obligations before any payment or distribution may be made in respect of
Securities of such series. Each Holder of this Security, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination and payment of Excess Proceeds as provided in
the Indenture and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
3
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
4
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflicts of law.
All capitalized terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.