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EXHIBIT 4.2
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FIRST SUPPLEMENTAL INDENTURE
between
NATIONAL COMMERCE BANCORPORATION, as Issuer,
and
THE BANK OF NEW YORK, as Trustee
Dated as of March 27, 1997
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES4
ARTICLE III
REDEMPTION OF THE DEBENTURES9
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD10
ARTICLE V
EXPENSES AND GUARANTEE11
ARTICLE VI
FORM OF DEBENTURE12
ARTICLE VII
MISCELLANEOUS21
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FIRST SUPPLEMENTAL INDENTURE, dated as of March 27, 1997 (the
"First Supplemental Indenture"), between National Commerce Bancorporation, a
Tennessee corporation (the "Company") and The Bank of New York, as trustee (the
"Trustee"), under the Indenture dated as of March 27, 1997 between the Company
and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a series of its Debt Securities to
be known as Floating Rate Junior Subordinated Deferrable Interest Debentures
due 2027 (the "Initial Debentures"), and to provide for, if and when issued in
exchange for the Initial Debentures pursuant to the Indenture and the
Registration Agreement, a series of its Debt Securities to be known as Floating
Rate Junior Subordinated Deferrable Interest Debentures due 2027 (the "Exchange
Debentures" and together with the Initial Debentures, the "Debentures"), the
form and substance of each such series of Debentures and the terms, provisions
and conditions thereof to be set forth as provided in the Indenture and this
First Supplemental Indenture;
WHEREAS, National Commerce Capital Trust I, a Delaware
statutory business trust (the "Trust"), has offered for sale pursuant to an
exemption from the registration requirements of the Securities Act of 1933,
$50,000,000 aggregate liquidation amount of Floating Rate Capital Trust
Pass-through Securities (the "Initial Capital Securities"), representing
undivided beneficial interests in the assets of the Trust and proposes to
invest the proceeds from such offering, together with the proceeds of the
issuance and sale by the Trust to the Company of its common securities, in
$51,547,000 aggregate principal amount of the Debentures;
WHEREAS, the Trust may offer and issue Floating Rate Capital
Trust Pass-through Securities (the "Exchange Capital Securities") in exchange
for the Initial Capital Securities; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this First Supplemental Indenture; all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with
its terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed; and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance
of the Initial Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of each
series of Debentures and the terms, provisions
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and conditions thereof, the Company covenants and agrees with the Trustee as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning
when used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section
or Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them
in the Declaration: (i) Administrators; (ii) Business Day; (iii) Capital
Security Certificate; (iv) Capital Treatment Event; (v) Clearing Agency; (vi)
Delaware Trustee; (vii) Depositary; (viii) Distribution; (ix) Institutional
Trustee; (x) Investment Company Event; (xi) Purchase Agreement; and (xii) Tax
Event;
(g) the following terms have the meanings given to them
in this Section 1.1(g):
"Additional Interest" shall have the meaning set forth in
Section 2.5(d).
"Calculation Agent" means any Person authorized by the Company
to determine the interest rate of the Debentures, which shall be The Bank of
New York, until a successor is appointed.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Declaration" means the Amended and Restated Declaration of
Trust of the Trust, dated as of March 27, 1997, as amended or supplemented from
time to time.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Determination Date" means, with respect to any interest
period, the date that is
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two London Business Days prior to the first day of such interest period;
provided, that the Determination Date for the initial interest period is the
date that is one London Business Day prior to the first day of such initial
interest period.
"Dissolution Event" means that, subject to the receipt by the
Company of prior approval from the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve, the Trust is
to be dissolved in accordance with the Declaration, and the Debentures held by
the Institutional Trustee are to be distributed to the holders of the Trust
Securities issued by the Trust pro rata in accordance with the Declaration.
"Extension Period" shall have the meaning set forth in Section
4.1.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Global Debenture" shall have the meaning set forth in Section
2.4(a)(i).
"interest" shall include all interest payable on a series of
Debentures including any Additional Interest, Compounded Interest and Special
Interest, if applicable.
"LIBOR" means, with respect to a quarterly interest period
relating to an Interest Payment Date (in the following order of priority):
(i) the rate (expressed as a percentage per annum) for
Eurodollar deposits having a three-month maturity
that appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on the related Determination Date;
(ii) if such rate does not appear on Telerate Page 3750 as
of 11:00 a.m. (London time) on the related
Determination Date, LIBOR will be the arithmetic mean
(if necessary rounded upwards to the nearest whole
multiple of .00001%) of the rates (expressed as
percentages per annum) for Eurodollar deposits having
a three-month maturity that appear on Reuters Monitor
Money Rates Page LIBO ("Reuters Page LIBO") as of
11:00 a.m. (London time) on such Determination Date;
(iii) if such rate does not appear on Reuters Page LIBO as
of 11:00 a.m. (London time) on the related
Determination Date, the Calculation Agent will
request the principal London offices of four leading
banks in the London interbank market to provide such
banks' offered quotations (expressed as percentages
per annum) to prime banks in the London interbank
market for Eurodollar deposits having a three-month
maturity as of 11:00 a.m. (London time) on such
Determination Date. If at least two quotations are
provided, LIBOR will be the arithmetic mean (if
necessary rounded upwards to the nearest whole
multiple of .00001%) of such quotations;
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(iv) if fewer than two such quotations are provided as
requested in clause (iii) above, the Calculation
Agent will request four major New York City banks to
provide such banks' offered quotations (expressed as
percentages per annum) to leading European banks for
loans in Eurodollars as of 11:00 a.m. (London time)
on such Determination Date. If at least two such
quotations are provided, LIBOR will be the arithmetic
mean (if necessary rounded upwards to the nearest
whole multiple of .00001%) of such quotations; and
(v) if fewer than two such quotations are provided as
requested in clause (iv) above, LIBOR will be LIBOR
determined with respect to the interest period
immediately preceding such current interest period.
If the rate for Eurodollar deposits having a three-month
maturity that initially appears on Telerate Page 3750 or Reuters Page LIBO, as
the case may be, as of 11:00 a.m. (London time) on the related Determination
Date is superseded on Telerate Page 3750 or Reuters Page LIBO, as the case may
be, by a corrected rate before 12:00 noon (London time) on such Determination
Date, the corrected rate as so substituted on the applicable page will be the
applicable LIBOR for such Determination Date.
"London Business Day" means any day, other than a Saturday or
Sunday, on which banks are open for business in London.
"Maturity Date" means April 1, 2027.
"Non-Book-Entry Capital Securities" shall have the meaning set
forth in Section 2.4(a)(ii).
"Record Date" shall have the meaning set forth in the
Debentures.
"Redemption Price" shall have the meaning set forth in Section
3.1.
"Registration Agreement" means the Registration Rights
Agreement, dated April 1, 1997, relating to the Debentures and the other
securities described therein among the Company, the Trust and the initial
purchasers named therein.
"Registered Exchange Offer" has the meaning set forth in the
Registration Agreement.
"Special Interest" has the meaning set forth in Section
2.5(f)(iii).
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ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1
The Initial Debentures and the Exchange Debentures are hereby
authorized as two series of Debt Securities. The aggregate principal amount of
Debentures outstanding at any time shall not exceed $51,547,000 (except as set
forth in Section 2.03(2) of the Indenture). Upon receipt of a written order of
the Company for the authentication and delivery of a series of Debentures and
satisfaction of the requirements of Section 2.04 of the Indenture, the Trustee
shall authenticate (a) Initial Debentures for original issuance in an aggregate
principal amount not to exceed $51,547,000 (except as set forth in Section
2.03(2) of the Indenture) or (b) Exchange Debentures for issuance pursuant to a
Registered Exchange Offer for Initial Debentures in a principal amount equal to
the principal amount of Initial Debentures exchanged in such Registered
Exchange Offer.
The Initial Debentures shall be issued pursuant to an
exemption from registration under the Securities Act and the Restricted
Securities Legend shall appear thereon, unless otherwise determined by the
Company in accordance with applicable law. The Initial Debentures may not be
transferred except in compliance with the Restricted Securities Legend set
forth in Section 2.07 of the Indenture, unless otherwise determined by the
Company in accordance with applicable law. The Debentures shall be issued in
minimum denominations of $100,000 and any integral multiple of $1,000 in excess
thereof.
SECTION 2.2
At the Maturity Date, the Debentures shall mature and the
principal thereof shall be due and payable together with all accrued and unpaid
interest thereon including Compounded Interest, Additional Interest and Special
Interest thereon, if any.
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SECTION 2.3
Except as provided in Section 2.4, Debentures of a series
shall be issued in fully registered certificated form without interest coupons.
Principal and interest on Debentures of a series issued in certificated form
will be payable, the transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures of such series bearing identical
terms and provisions at the office or agency of the Company in the Borough of
Manhattan, The City of New York, which office or agency shall initially be the
corporate trust office of the Trustee; provided, however, that payment of
interest may be made at the option of the Company by check mailed to the holder
of any Debenture at such address as shall appear in the Debt Security Register
for such series of Debentures or by wire transfer to an account appropriately
designated by such holder. Notwithstanding the foregoing, so long as the
holder of any Debentures of a series is the Institutional Trustee, the payment
of the principal of and interest (including Compounded Interest, Additional
Interest and Special Interest, if any) on the Debentures held by the
Institutional Trustee will be made at such place and to such account as may be
designated by the Institutional Trustee.
SECTION 2.4
(a) In connection with a Dissolution Event,
(i) except as provided in clause (ii) of this
sentence, Debentures of a series in certificated form may be presented
to the Trustee by the Institutional Trustee in exchange for a Global
Security for such series in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures of such
series (a "Global Debenture"), to be registered in the name of The
Depository Trust Company, New York, New York, or its nominee (hereby
designated to be the Depositary for Debentures of such series), and
delivered by the Trustee to the Depositary or its custodian for
crediting to the accounts of the Depositary's participants pursuant to
the instructions of the Administrators of the Trust, which
instructions shall be provided in accordance with the terms of the
Declaration; the Company upon any such presentation shall execute a
Global Debenture for such series in such aggregate principal amount
and deliver the same to the Trustee for authentication and delivery in
accordance with the Indenture and this First Supplemental Indenture;
payments on the Debentures of a series issued as a Global Debenture
will be made to the Depositary;
(ii) if any Capital Securities of a series are not
held by the Clearing Agency or its nominee ("Non-Book-Entry Capital
Securities"), the Debentures in certificated form of the series held
by the Trust corresponding to such Capital Securities of such series
may be presented to the Trustee by the Institutional Trustee and any
Capital Security Certificate which represents such Non-Book-Entry
Capital Securities will be deemed to represent beneficial interests in
Debentures so presented to the Trustee by the Institutional Trustee
having an aggregate principal amount equal to the aggregate
liquidation amount of such Non-Book-Entry Capital Securities until
such Capital Security Certificates are presented to the Debt Security
registrar for
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registration of transfer or reissuance at which time such Capital
Security Certificates will be canceled and a Debenture of the series
previously held by the Trust registered in the name of the holder of
the Capital Security Certificate or the transferee of the holder of
such Capital Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate liquidation amount
of the Capital Security Certificate canceled, will be executed by the
Company and delivered to the Trustee for authentication and delivery
in accordance with the Indenture and this First Supplemental
Indenture; upon issue of such Debentures of such series, Debentures of
such series with an equivalent aggregate principal amount that were
presented by the Institutional Trustee to the Trustee will be deemed
to have been canceled; and
(iii) prior to the distribution of Debentures of a
series held by the Institutional Trustee to the holders of Trust
Securities, the Company and the Trustee shall enter into a
supplemental indenture pursuant to Article IX of the Indenture to
provide for transfer procedures and restrictions with respect to such
Debentures of such series substantially similar to those contained in
the Declaration with respect to Capital Securities of the
corresponding series to the extent applicable in the circumstances
existing at the time of distribution of Debentures of such series in
connection with a Dissolution Event for purposes of assuring that no
registration of Debentures of such series is required under the
Securities Act of 1933, as amended.
(b) A Global Debenture may be transferred, in whole but
not in part, only by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary, or to a successor Depositary selected or approved by the Company or
to a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary or if at any time the
Depositary shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depositary is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, the Company will execute, and, subject to
Article II of the Indenture, the Trustee, upon written request of the Company,
will authenticate and make available for delivery, Debentures of each series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Debenture of such series in exchange for such Global Debenture. In addition,
the Company may at any time determine that the Debentures of a series shall no
longer be represented by a Global Debenture. In such event the Company will
execute, and subject to Section 2.07 of the Indenture, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and deliver Debentures of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global
Debenture of such series in exchange for such Global Debenture. A Global
Debenture shall also be exchangeable for Debentures in definitive form upon the
occurrence of an Event of Default. Upon the exchange of a Global Debenture for
Debentures in definitive registered form
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without coupons, in authorized denominations, such Global Debenture shall be
canceled by the Trustee. Such Debentures in definitive registered form issued
in exchange for such Global Debenture shall be registered in such names and in
such authorized denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Debentures to the Depositary for delivery to the
Persons in whose names such Debentures are so registered.
SECTION 2.5
(a) The Company shall appoint a Calculation Agent, which
may be the Trustee, to determine LIBOR as of the Determination Date for each
quarterly interest period and to calculate the interest rate and the amount of
interest due for each such interest period. Absent manifest error, the
Calculation Agent's determination of LIBOR and its calculation of the interest
rate for each interest period shall be final and binding on the holders of the
Debentures.
(b) The amount of interest payable for any period will be
computed on the basis of the actual number of days elapsed in a year of twelve
30-day months. In the event that any date on which interest is payable on the
Debentures of a series is not a Business Day, then payment of interest payable
on such date will be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
(c) The indebtedness evidenced by all Debentures of a
series is subordinate and junior in right of payment to the prior payment in
full of all present and future Senior Indebtedness and pari passu in right of
payment with all Debentures of each other series.
(d) If, at any time while the holder of any Debentures of
a series is the Institutional Trustee, the Trust is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any such case, the Company shall pay as additional interest
("Additional Interest") on the Debentures held by the Institutional Trustee,
such additional amounts as shall be required so that the net amounts received
and retained by the Trust after paying any such taxes, duties, assessments or
other governmental charges will be equal to the amounts the Trust and the
Institutional Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
(e) If an Initial Debenture is exchanged in a Registered
Exchange Offer prior to the Record Date for the first Interest Payment Date
following such exchange, accrued and unpaid interest, if any, on such Initial
Debenture, up to but not including the date of issuance of the Exchange
Debenture or Exchange Debentures issued in exchange for such Initial Debenture,
shall be paid on the first Interest Payment Date for such Exchange Debenture or
Exchange Debentures to the Securityholder or Securityholders of such Exchange
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Debenture or Exchange Debentures on the first Record Date with respect to such
Exchange Debenture or Exchange Debentures. If an Initial Debenture is
exchanged in a Registered Exchange Offer subsequent to the Record Date for the
first Interest Payment Date following such exchange but on or prior to such
Interest Payment Date, then any such accrued and unpaid interest with respect
to such Initial Debenture and any accrued and unpaid interest on the Exchange
Debenture or Exchange Debentures issued in exchange for such Initial Debenture,
through the day before such Interest Payment Date, shall be paid on such
Interest Payment Date to the Securityholder of such Initial Debenture on such
Record Date.
(f) The following terms relate to Special Interest:
(i) In the event that either (A) the Exchange
Offer Registration Statement (as such term is defined in the
Registration Agreement) is not filed with the Securities and Exchange
Commission (the "Commission") on or prior to the 150th day following
the Closing Date (as such term is defined in the Registration
Agreement), (B) the Exchange Offer Registration Statement is not
declared effective by the Commission on or prior to the 180th day
following the Closing Date or (C) the Registered Exchange Offer (as
such term is defined in the Registration Agreement) is not consummated
or a Shelf Registration Statement (as such term is defined in the
Registration Agreement) with respect to the Initial Debentures is not
declared effective by the Commission on or prior to the 210th day
following the Closing Date, interest shall accrue (in addition to the
stated interest on Initial Debentures) from and including the next day
following each of (1) such 150-day period in the case of clause (A)
above, (2) such 180-day period in the case of clause (B) above and (3)
such 210-day period in the case of clause (C) above. In each case,
such additional interest shall accrue at a rate per annum equal to
0.25% of the principal amount of the Initial Debentures (determined
daily). The aggregate amount of additional interest payable pursuant
to the above provisions will in no event exceed 0.25% per annum of the
principal amount of the Initial Debentures (determined daily). Upon
(X) the filing of the Exchange Offer Registration Statement after the
150-day period described in clause (A) above, (Y) the effectiveness of
the Exchange Offer Registration Statement after the 180-day period
described in clause (B) above or (Z) the consummation of the
Registered Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, after the 210-day period described in
clause (C) above, the additional interest payable on the Initial
Debentures, with respect to such clause (A), (B) or (C), as the case
may be, from the date of such filing, effectiveness or consummation,
as the case may be, shall cease to accrue.
(ii) In the event that a Shelf Registration
Statement filed with respect to the Initial Debentures is declared
effective pursuant to the terms of the Registration Agreement, if the
Company or the Trust fails to keep such Shelf Registration Statement
continuously effective for the period required by the Registration
Agreement, then from the next day following such time as the Shelf
Registration Statement is no longer effective until the earlier of (A)
the date that the Shelf Registration Statement is again deemed
effective, (B) the date that is the third
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anniversary of the effective date or (C) the date as of which all of
the Initial Debentures are sold pursuant to the Shelf Registration
Statement or may be sold without registration pursuant to Rule 144
under the Securities Act of 1933, as amended, interest shall accrue on
the Initial Debentures (in addition to the stated interest on the
Initial Debentures) at a rate per annum equal to 0.25% of the
principal amount of the Initial Debentures (determined daily).
(iii) Any additional interest that accrues with
respect to the Initial Debentures as provided in this paragraph is
referred to as "Special Interest." For all purposes of the Indenture,
this Supplemental Indenture and the Initial Debentures, Special
Interest shall be treated as interest and shall be payable on the same
Interest Payment Dates and to the Securityholders of record on the
same record dates as would be the case for stated interest.
SECTION 2.6
If at any time the holder of all Debentures of a series ceases
to be the Institutional Trustee and, at such time, the Capital Securities
issued by the Trust are rated by at least one nationally recognized statistical
rating agency, then the Company shall use its best efforts to obtain from at
least one nationally recognized statistical rating agency a rating for the
Debentures of such series.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1
If a Tax Event, a Capital Treatment Event or an Investment
Company Event shall occur and be continuing, the Company shall have the right,
subject to the receipt by the Company of prior approval from the Federal
Reserve if then required under applicable capital guidelines or policies of the
Federal Reserve, to redeem, upon not less than 30 days' nor more than 60 days'
notice, the Debentures in whole or in part, at any time, within 90 days
following the occurrence of such Tax Event, Capital Treatment Event or
Investment Company Event, as the case may be, at a redemption price equal to
100% of the principal amount to be redeemed plus accrued but unpaid interest to
the date of such redemption (the "Redemption Price"). If Debentures are only
partially redeemed pursuant to this Section 3.1, Debentures shall be redeemed
pro rata or by lot or by any other method utilized by the Trustee. The
Redemption Price shall be paid prior to 11:00 a.m., New York City time, on the
date of such redemption or such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an amount sufficient
to pay the Redemption Price by 10:00 a.m., New York City time, on the date the
Redemption Price is to be paid.
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SECTION 3.2
At any time on or after April 1, 2007, the Company shall have
the right, subject to the provisions of Article XIV of the Indenture and to the
receipt by the Company of prior approval from the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal
Reserve, to redeem the Debentures, in whole or in part, from time to time, at
the Redemption Price. Any redemption pursuant to this Section 3.2 will be made
upon not less than 30 days' nor more than 60 days' notice to the holders of the
relevant Debentures. If Debentures are only partially redeemed pursuant to
this Section 3.2, Debentures shall be redeemed pro rata or by lot or by any
other method utilized by the Trustee. The Redemption Price shall be paid prior
to 11:00 a.m., New York City time, on the date of such redemption or such
earlier time as the Company determines, provided that the Company shall deposit
with the Trustee an amount sufficient to pay the Redemption Price by 10:00
a.m., New York City time, on the date the Redemption Price is to be paid.
The Debentures are not entitled to the benefit of any sinking
fund.
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ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1
The Company shall have the right, subject to the conditions
set forth herein, to defer payments of interest on the Debentures of a series
by extending the interest payment period on the Debentures of a series at any
time and from time to time during the term of the Debentures, for up to 20
consecutive quarterly periods (each such extended interest payment period, an
"Extension Period"), during which Extension Period no interest shall be due and
payable; provided that (i) no Extension Period may extend beyond the Maturity
Date and (ii) no Extension Period may commence or be extended so long as the
Company is in default in the payment of any interest upon any Debentures of
such series or has not paid all Deferred Interest from a prior completed
Extension Period. At the termination of an Extension Period for the Debentures
of a series or, if not an Interest Payment Date, on the Interest Payment Date
immediately following termination of such Extension Period for the Debentures
of such series, the Company shall pay all interest then accrued and unpaid on
the Debentures, together with interest thereon at a variable annual rate equal
to LIBOR plus 0.98%, compounded quarterly (to the extent permitted by
applicable law) ("Compounded Interest") and any Additional Interest (together
with Compounded Interest, "Deferred Interest"), which Deferred Interest shall
be payable to the holders of the Debentures of such series in whose names the
Debentures are registered in the Debt Security Register on the record date for
the payment of interest on such Interest Payment Date. Before the termination
of any Extension Period, the Company may further extend such period, provided
that such period together with all such previous and further consecutive
extensions thereof shall not exceed 20 consecutive quarterly periods, or extend
beyond the Maturity Date. Upon the termination of any Extension Period and
upon the payment of all Deferred Interest then due, the Company may commence a
new Extension Period, subject to the foregoing requirements.
SECTION 4.2
(a) If the Institutional Trustee is the only registered
holder of the Debentures of a series at the time the Company initiates an
Extension Period, the Company shall give written notice to the Administrators,
the Institutional Trustee and the Trustee of its initiation of such Extension
Period one Business Day before the earlier of (i) the date on which
distributions on the Capital Securities of the corresponding series are
payable, or (ii) the date the Administrators are required to give notice to
holders of the Capital Securities of the corresponding series (or any national
securities exchange or other organization on which such Capital Securities are
listed, if any) of the record date or the distribution payment date, in each
case with respect to distributions on the Trust Securities the payment of which
is being deferred.
(b) If the Institutional Trustee is not the only
registered holder of the Debentures of a series at the time the Company
initiates an Extension Period, the Company
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shall give the holders of the Debentures of such series and the Trustee
written notice of its initiation of such Extension Period at least ten Business
Days before the earlier of (i) the next succeeding Interest Payment Date or
(ii) the date the Company is required to give notice to holders of the
Debentures of such series (or any national securities exchange or other
organization on which the Capital Securities of the corresponding series are
listed, if any) of the record or payment date of such interest, in each case
with respect to interest payments the payment of which is being deferred.
ARTICLE V
EXPENSES AND GUARANTEE
SECTION 5.1
In connection with the offering, sale and issuance of the
Debentures of a series and in connection with the sale of any Trust Securities
by the Trust, the Company, in its capacity as borrower with respect to the
Debentures of such series, shall:
(a) pay all costs and expenses relating to the offering,
sale and issuance of Debentures of such series, including commissions to the
underwriters payable pursuant to the Purchase Agreement and compensation of the
Trustee under the Indenture in accordance with the provisions of Section 6.06
of the Indenture;
(b) pay all debts and other obligations (other than with
respect to the Trust Securities) and costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization
of the Trust, the offering, sale and issuance of the Trust Securities
(including commissions to the underwriters in connection therewith), the fees
and expenses, if any, of the Institutional Trustee, the Delaware Trustee and
each Administrator, the costs and expenses relating to the operation of the
Trust, including, without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets of the Trust);
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration or the Purchase Agreement
or the Registration Agreement; and
(d) pay any and all taxes, duties, assessments or
governmental charges of whatever nature and all liabilities, costs and expenses
with respect thereto (other than United States withholding taxes attributable
to the Trust or assets of the Trust) to which the Trust may become subject.
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SECTION 5.2
Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Institutional Trustee, as the case
may be, pursuant to Section 5.7 of the Declaration, the Company shall pay to
the Delaware Trustee or the Institutional Trustee, as the case may be, all
amounts owing to the Delaware Trustee or the Institutional Trustee, as the case
may be, under Sections 10.4 and 10.6 of the Declaration accrued to the date of
such termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
The Debentures and the Trustee's certificate of authentication
to be endorsed thereon are to be substantially in the following forms and are
expressly made a part of this First Supplemental Indenture:
(FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT: This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures of this series
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Debenture may be registered except in limited circumstances. Except as
otherwise provided in Section 2.11 of the Indenture, this Debenture may be
transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture of this series issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.]
[IF THIS DEBENTURE IS ONE OF A SERIES ORIGINALLY ISSUED
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, AS
SPECIFIED PURSUANT TO SECTION 2.03 OF THE INDENTURE, INSERT THE FOLLOWING
UNLESS OTHERWISE DETERMINED BY THE COMPANY -- THIS DEBENTURE HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS DEBENTURE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
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ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS DEBENTURE BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH DEBENTURE
PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH NATIONAL COMMERCE BANCORPORATION INC.
(THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS DEBENTURE
OR ANY PREDECESSOR OF THIS DEBENTURE (THE "RESALE RESTRICTIONS TERMINATION
DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE DEBENTURES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE DEBENTURE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY. THE HOLDER OF THIS DEBENTURE AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS. DEBENTURES OWNED BY A PURCHASER THAT IS NOT A
QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS
TERMINATION DATE.]
No.
-----------------
NATIONAL COMMERCE BANCORPORATION
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE 2027
NATIONAL COMMERCE BANCORPORATION, a Tennessee corporation (the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________ or
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registered assigns, the principal sum of ________________ Dollars ($_________ )
on April 1, 2027, and to pay interest on said principal sum from March 27,
1997, or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on the first day
of January, April, July and October of each year commencing July 1, 1997, at a
variable annual rate equal to LIBOR plus 0.98% until the principal hereof shall
have become due and payable, and on any overdue principal and (without
duplication and to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at a variable
annual rate equal to LIBOR plus 0.98% compounded quarterly. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
the actual number of days elapsed in a year of twelve 30-day months. In the
event that any date on which interest is payable on this Debenture is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
the Indenture, be paid to the Person in whose name this Debenture (or one or
more Predecessor Securities, as defined in said Indenture) is registered at the
close of business on the Record Date for such interest installment, [which
shall be the close of business on the Business Day next preceding such Interest
Payment Date]. [IF PURSUANT TO THE PROVISIONS OF THE INDENTURE THE DEBENTURES
OF THIS SERIES ARE NO LONGER REPRESENTED SOLELY BY A GLOBAL DEBENTURE,
SUBSTITUTE THE FOLLOWING FOR THE FOREGOING BRACKETED TEXT -- which shall be the
close of business on the 15th day of the month next preceding the month
containing such Interest Payment Date.] Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered holders on such Record Date and may be paid to the Person in whose
name this Debenture (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered holders of this series of Debentures not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Debentures of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. In the
event the Debentures of this series are issued in non-book entry form, the
principal of and interest on this Debenture shall be payable at the office or
agency of the Trustee (or other paying agent appointed by the Company)
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered holder at such address
as shall appear in the Debt Security Register or by wire transfer to an account
appropriately designated by the holder hereof. Notwithstanding the foregoing,
so long as the holder of this Debenture is the Institutional Trustee, the
payment of the principal of and interest on this Debenture will be made in
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immediately available funds at such place and to such account as may be
designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each holder hereof, by his
or her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
If this Debenture is exchanged in a Registered Exchange Offer
prior to the Record Date for the first Interest Payment Date following such
exchange, accrued and unpaid interest, if any, on this Debenture, up to but not
including the date of issuance of the Exchange Debenture or Exchange Debentures
issued in exchange for this Debenture, shall be paid on the first Interest
Payment Date for such Exchange Debenture or Exchange Debentures to the
Securityholder or Securityholders of such Exchange Debenture or Exchange
Debentures on the first Record Date with respect to such Exchange Debenture or
Exchange Debentures. If this Debenture is exchanged in a Registered Exchange
Offer subsequent to the Record Date for the first Interest Payment Date
following such exchange but on or prior to such Interest Payment Date, then any
such accrued and unpaid interest with respect to this Debenture and any accrued
and unpaid interest on the Exchange Debenture or Exchange Debentures issued in
exchange for this Debenture, through the day before such Interest Payment Date,
shall be paid on such Interest Payment Date to the Securityholder of this
Debenture on such Record Date.
If any time the Trust shall be required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States or any other taxing authority,
then, in any such case, the Company shall pay as additional interest on the
Debentures held by the Institutional Trustee such additional amounts as shall
be required so that the net amounts received and retained by the Trust after
paying any such taxes, duties, assessments or other governmental charges will
equal the amounts the Trust and the Institutional Trustee would have received
had no such taxes, duties, assessments or other governmental charges been
imposed. [IF THIS DEBENTURE IS AN INITIAL DEBENTURE INSERT -- In addition, the
interest rate payable on the Debentures of this series is subject to increase
as provided in the Indenture if, pursuant to the Registration Agreement either
(A) the Exchange Offer Registration Statement (as such term is defined in the
Registration Agreement) is not filed with the Securities and Exchange
Commission (the "Commission") on or prior to the 150th day following the
Closing Date (as such term is defined in the Registration Agreement), (B) the
Exchange Offer Registration Statement is not declared effective by the
Commission on or prior to the 180th day following the Closing Date or (C) the
Registered Exchange Offer (as such term is defined in the Registration
Agreement)
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is not consummated or a Shelf Registration Statement (as such term is defined
in the Registration Agreement) with respect to the Initial Debentures is not
declared effective by the Commission on or prior to the 210th day following the
Closing Date.
The interest rate payable on the Debentures of this series is
also subject to adjustment in certain circumstances if a Shelf Registration
Statement filed pursuant to the Registration Agreement is not kept continuously
effective for a specified period, as provided in the Indenture.]
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed
by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
NATIONAL COMMERCE BANCORPORATION
By:
----------------------------------
Name:
Title:
[Seal]
By:
----------------------------------
Name:
----------------------------------------------Title:
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:
---------------------
THE BANK OF NEW YORK, as Trustee
By
------------------------------------
Authorized Signatory
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(REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debt
Securities of the Company, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of March 27, 1997, duly executed
and delivered between the Company and The Bank of New York, as Trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture dated as of
March 27, 1997, between the Company and the Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the series of Debt Securities (referred
to herein as the "Debentures") of which this Debenture is a part. The summary
of the terms of this Debenture contained herein does not purport to be complete
and is qualified by reference to the Indenture. By the terms of the Indenture,
the Debt Securities are issuable in series that may vary as to amount, date of
maturity, rate of interest and in other respects as provided in the Indenture.
This series of Debentures is limited in aggregate principal amount as specified
in said First Supplemental Indenture.
Upon the occurrence and continuation of a Tax Event, a Capital
Treatment or an Investment Company Event, this Debenture may become due and
payable, in whole or in part, at any time, within 90 days following the
occurrence of such Tax Event, Capital Treatment Event or Investment Company
Event as the case may be, at a redemption price equal to 100% of the principal
amount being redeemed together with any accrued and unpaid interest thereon.
The Company shall also have the right to redeem this Debenture at the option of
the Company, in whole or in part, at any time or from time to time on or after
April 1, 2007, at par plus accrued and unpaid interest to the redemption date.
Any redemption pursuant to the preceding paragraph will be
made, subject to the receipt by the Company of prior approval from the Board of
Governors of the Federal Reserve System (the "Federal Reserve") if then
required under applicable capital guidelines or policies of the Federal
Reserve, upon not less than 30 days' nor more than 60 days' notice. If the
Debentures are only partially redeemed by the Company, the Debentures will be
redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided that if, at the time of redemption, the Debentures are registered as a
Global Debenture, the Depositary shall determine the principal amount of such
Debentures held by each of its direct participants to be redeemed pro rata in
accordance with its procedures.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for the unredeemed portion hereof
will be issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Debentures
may be declared due and payable, and upon such declaration of acceleration
shall become due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
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The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debt Securities of any series at the time
outstanding affected thereby, as specified in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities; provided, however, that no such supplemental indenture
shall, among other things, without the consent of the holders of each Debt
Security then outstanding and affected thereby (i) extend the fixed maturity of
any Debt Securities of any series, or reduce the principal amount thereof or
any redemption premium thereon, or reduce the rate or extend the time of
payment of interest thereon, or make the principal of, or interest or premium
on, the Debt Securities payable in any coin or currency other than that
provided in the Debt Securities, or impair or affect the right of any holder of
Debt Securities to institute suit for the payment thereof, or (ii) reduce the
aforesaid percentage of Debt Securities, the holders of which are required to
consent to any such supplemental indenture. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount
of the Debt Securities of a series at the time outstanding affected thereby as
provided in the Indenture, on behalf of all of the holders of the Debt
Securities of such series, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default
in the payment of the principal of or premium, if any, or interest on any of
the Debt Securities of such series. Any such consent or waiver by the
registered holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all future
holders and owners of this Debenture and of any Debenture issued in exchange
herefor or in place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or waiver is made
upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
The Company shall have the right at any time during the term
of the Debentures and from time to time, subject to certain conditions, to
defer payment of interest on the Debentures of a series by extending the
interest payment period for Extension Periods, each not exceeding 20
consecutive quarterly periods as provided in the Indenture. Notwithstanding
the foregoing, no Extension Period may extend beyond the maturity date of the
Debentures. In the event that the Company exercises its right to extend an
interest payment period, then during any Extension Period (a) the Company shall
not declare or pay any dividends on, make any distribution with respect to, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any
of its capital stock or rights to acquire such capital stock (other than (i)
purchases or acquisitions of shares of any such capital stock or rights to
acquire such capital stock in connection with the satisfaction by the Company
of its obligations under any employee benefit plans, (ii) as a result of a
reclassification of the
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Company's capital stock or rights to acquire such capital stock or the exchange
or conversion of one class or series of the Company's capital stock or rights
to acquire such capital stock for another class or series of the Company's
capital stock or rights to acquire such capital stock, (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (iv) dividends and distributions made on the Company's
capital stock or rights to acquire such capital stock with the Company's
capital stock or rights to acquire such capital stock, or (v) any declaration
of a dividend in connection with the implementation of a shareholder rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto), or make
guarantee payments (other than payments under the Capital Securities Guarantee
or the Common Securities Guarantee for the Trust) with respect to the foregoing
and (b) the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued
by the Company that rank pari passu with or junior to the Debentures. Prior to
the termination of any such Extension Period, the Company may further defer
payments of interest by extending the interest payment period; provided,
however, that each such Extension Period, including all such previous and
further extensions thereof, may not exceed 20 consecutive quarterly periods or
extend beyond the maturity of the Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, the Company may
commence a new Extension Period, subject to the terms set forth in the
Indenture. No interest during an Extension Period, except on the date on which
such Extension Period terminates (or if such date is not an Interest Payment
Date, on the immediately following Interest Payment Date), shall be due and
payable.
As provided in the Indenture and subject to certain
limitations herein and therein set forth, this Debenture is transferable by the
registered holder hereof on the Debt Security Register of the Company, upon
surrender of this Debenture for registration of transfer at the office or
agency of the Trustee in the City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures
of authorized denominations and for the same aggregate principal amount and
series will be issued to the designated transferee or transferees. No service
charge will be made for any such registration of transfer, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any Authenticating Agent, any paying
agent, any transfer agent and the Debt Security registrar may deem and treat
the registered holder hereof as the absolute owner hereof (whether or not this
Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon) for the purpose of receiving payment of or on account of the
principal hereof and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any Authenticating Agent nor any paying
agent nor any transfer agent nor any Debt Security registrar shall be affected
by any notice to the contrary.
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No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Debentures of this series are issuable only in registered
form without coupons. A Global Debenture is exchangeable for Debentures in
definitive form only under certain limited circumstances set forth in the
Indenture. As provided in the Indenture and subject to certain limitations
herein and therein set forth, Debentures of this series are exchangeable for a
like aggregate principal amount of Debentures of this series of a different
authorized denomination, as requested by the holder surrendering the same.
The Debentures of this series are issuable only in minimum
denominations of $100,000 and any integral multiple of $1,000 in excess
thereof. The Debentures of this series may be transferred only in blocks
having an aggregate principal amount of not less than $100,000. Any transfer
of Debentures of this series in a block having an aggregate principal amount of
less than $100,000 shall be deemed to be void and of no legal effect
whatsoever. Any transferee of Debentures of this series having an aggregate
principal amount of less than $100,000 shall be deemed not to be the holder of
such Debentures for any purpose, including, but not limited to, the receipt of
payments on such Debentures, and such transferee shall be deemed to have no
interest whatsoever in such Debentures.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THE DEBENTURES, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
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SECTION 7.2
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this First Supplemental Indenture.
SECTION 7.3
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State without regard to conflict of laws principles thereof.
SECTION 7.4
In case any one or more of the provisions contained in this
First Supplemental Indenture or in a series of Debentures shall for any reason
be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this First Supplemental Indenture or of such series of the
Debentures, but this First Supplemental Indenture and such series of the
Debentures shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
This First Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
NATIONAL COMMERCE BANCORPORATION
By:
-------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
-------------------------------------------
Name:
Title:
75607
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